Two environmental civil society organisations challenged the South African government's nuclear power procurement programme undertaken between 2013 and 2016. The Minister of Energy made two separate determinations in 2013 and 2016 under section 34 of the Electricity Regulation Act, determining that 9,600MW of nuclear power should be procured. The 2013 determination was only gazetted in December 2015, two years after it was made. The 2016 determination changed the procurer from the Department of Energy to Eskom. In 2015, the Minister tabled three intergovernmental agreements (IGAs) before Parliament under section 231(3) of the Constitution: with the USA (signed 1995), South Korea (signed 2010), and Russia (signed 2014). The Russian IGA was particularly detailed, specifying construction of up to 9.6GW of nuclear capacity using Russian VVER reactor technology, containing indemnification clauses, tax concessions, and dispute resolution mechanisms. The applicants contended these actions violated constitutional requirements for public participation, proper parliamentary procedures, and procurement fairness.
The court declared both the 2013 and 2016 section 34 determinations unconstitutional and unlawful and set them aside. Any Requests for Proposals or Requests for Information issued pursuant to these determinations were also set aside. The Minister's decision to table the Russian IGA under section 231(3) was declared unconstitutional and unlawful and set aside (though relief regarding the signature of the agreement was refused based on separation of powers concerns). The Minister's decisions to table the USA and South Korean IGAs under section 231(3) were declared unconstitutional and unlawful and set aside. The Minister was ordered to pay the applicants' costs, including costs of three counsel, with costs relating to late disclosure of the 2013 determination on an attorney and client scale.
1. NERSA's decisions under section 34 of the Electricity Regulation Act constitute administrative action requiring procedural fairness including public participation under section 10 of NERA and sections 3-4 of PAJA, given their direct external legal effect and impact on rights of energy producers and the public. 2. Even if characterized as executive action, major decisions with far-reaching public consequences require public consultation to satisfy the rationality standard under the principle of legality - both the decision and the process leading to it must be rational. 3. The requirement in section 231(3) of the Constitution to table international agreements 'within a reasonable time' is a jurisdictional prerequisite for the proper exercise of the power, not merely a directory provision - failure to table within a reasonable time renders the tabling unconstitutional. 4. International agreements that are detailed, contain binding commitments, specify technology and procurement arrangements, and include indemnification and preferential treatment provisions are not routine 'technical, administrative or executive' agreements under section 231(3) but require parliamentary approval under section 231(2). 5. Domestic courts have jurisdiction to interpret international agreements to the limited extent necessary to determine whether executive conduct in relation to them complies with the Constitution, without impermissibly interfering in international relations. 6. The combination of inconsistent legal instruments (the two section 34 determinations) without express repeal or amendment violates the rule of law and renders subsequent instruments irrational.
The court noted that it would be inappropriate at this stage to determine whether the Russian IGA violated section 217 of the Constitution regarding procurement, as this would interfere with the parliamentary process that should follow if the agreement is re-tabled under section 231(2), though such a question could be justiciable in future. The court suggested that section 231(2) procedures may be non-exclusive, meaning the executive could choose to use the more onerous parliamentary approval process even for agreements that might fall within section 231(3). The court expressed concern about the practice whereby the party negotiating a treaty (the executive) also determines its classification for tabling purposes, noting this creates potential for manipulation. The judgment indicated that absolute clarity is not required to avoid vagueness as a ground of review, but administrative action must be reasonably capable of meaningful construction. Bozalek J emphasized that the distinction between 'policy in the narrow sense' and 'policy in the broad sense' is important, with only the latter excluded from administrative action, cautioning against over-extension of the executive policy exception.
This landmark case established important principles regarding public participation in major government decisions, particularly in the energy and procurement sectors. It affirmed that decisions with far-reaching public consequences, even if characterized as policy or executive action, require public consultation to meet rationality and legality standards. The judgment clarified the distinction between section 231(2) and 231(3) of the Constitution for international agreements, holding that detailed, binding agreements with significant commitments cannot be characterized as routine technical/administrative agreements to bypass parliamentary approval. The court emphasized that the requirement to table agreements 'within a reasonable time' under section 231(3) is a jurisdictional prerequisite, not merely directory. The case reinforced the justiciability of executive action relating to international affairs, the broad standing of civil society organizations under section 38 of the Constitution, and the courts' role as ultimate guardians of the Constitution. It demonstrated judicial willingness to scrutinize major executive decisions affecting public resources while exercising appropriate restraint based on separation of powers. The case had significant practical impact on South Africa's nuclear procurement programme and set important precedents for administrative law, constitutional interpretation, and the conduct of international relations within constitutional constraints.