Minister of Mineral Resources and Energy v Becker and Others; National Nuclear Regulator and Another v Becker and Another; Becker v Minister of Mineral Resources and Energy and Others

Mr Peter Becker was appointed in June 2021 as a non-executive director of the Board of the National Nuclear Regulator (NNR), representing communities potentially affected by nuclear activities, in terms of s 8(4) of the National Nuclear Regulator Act 47 of 1999. Throughout his tenure, Becker was also the spokesperson for the Koeberg Alert Alliance (KAA), an organisation opposed to nuclear energy and the extension of the Koeberg Nuclear Power Station’s lifespan. He made public statements and gave media interviews criticising nuclear policy, questioning Koeberg’s safety, and expressing opposition to spending on new nuclear projects. The Board questioned his potential conflict of interest, obtained an independent legal opinion, and the chairperson wrote to the Minister of Mineral Resources and Energy recommending action. On 18 January 2022, the Minister suspended Becker with immediate effect, pending a final decision. After allowing Becker to make written representations, the Minister discharged him on 25 February 2022 in terms of s 9(1) of the Act, principally on the grounds of misconduct, conflict of interest, and publicly vocalising views inimical to nuclear energy. Becker launched review proceedings in the Western Cape High Court, which declared the Minister’s decision unlawful, unconstitutional and invalid and set it aside. The Minister and the NNR appealed to the Supreme Court of Appeal. Becker cross-appealed, seeking retrospective reinstatement for the balance of his three-year term.

• Whether the Minister’s discharge of Mr Becker for misconduct under s 9(1) of the National Nuclear Regulator Act 47 of 1999 was reviewable and unlawful under PAJA and the principle of legality.
• Whether holding and publicly expressing personal views opposing the desirability of nuclear energy constitutes misconduct under s 9(1).
• Whether the Minister may discharge a director in anticipation of future misconduct or speculative future bias.
• Whether the Minister unlawfully conflated nuclear desirability with nuclear safety in finding misconduct.
• Whether the Minister’s public statements and conduct before receiving representations rendered the discharge proceedings procedurally unfair and irrational.
• Whether the High Court’s order setting aside the discharge should operate retrospectively so as to reinstate Becker for the balance of his term.

The appeal of the Minister of Mineral Resources and Energy (Case no 1199/2023) is dismissed with costs, including those of two counsel where employed. The appeal of the National Nuclear Regulator and the Chairperson of the Board of Directors of the National Nuclear Regulator (Case no 966/2023) is dismissed with costs, including those of two counsel where employed. The cross-appeal of Mr Peter Becker (Case no 1013/2023) is dismissed with each party to pay their own costs.

A director may be discharged under s 9(1) of the National Nuclear Regulator Act 47 of 1999 only for actual misconduct, incapacity, or repeated failure to perform functions efficiently; misconduct is an objective jurisdictional fact subject to objective judicial review under the principle of legality. Holding and publicly expressing personal views on the desirability of nuclear energy does not amount to misconduct where the director’s statutory function is to regulate safety, not to advocate for or against nuclear policy. A decision-maker may not remove a director in anticipation of future misconduct or on the basis of speculation as to future bias; the jurisdictional fact must exist at the time of the decision. A discharge decision is unlawful and irrational where the decision-maker conflates nuclear safety with nuclear desirability, relies on incorrect facts, predetermines the outcome before affording the director a fair opportunity to make representations, or applies standards arbitrarily by penalising anti-nuclear views while tolerating pro-nuclear advocacy by other directors.

The Court observed that the Board of the Regulator is not involved in determining governmental policy regarding the use of nuclear energy, and that the Board comprises individual directors with divergent views, but that nuclear safety is the sole statutorily prescribed imperative that ought to guide Board decisions. The Court also noted that the Biowatch principle, requiring each party to bear its own costs, applied to Mr Becker’s cross-appeal.

The judgment is significant in South African administrative and constitutional law because it reaffirms that statutory preconditions for the exercise of public power (jurisdictional facts) are objectively reviewable and cannot be insulated by subjective ministerial opinion. It clarifies that regulatory board members may hold and publicly express personal policy views—here, opposition to nuclear energy—without committing misconduct, provided their statutory duty is to evaluate safety rather than to advocate for government policy. The case also underscores that a decision-maker cannot lawfully remove an office-bearer in anticipation of future misconduct or based on speculation about future bias, and that procedural fairness requires an open mind when receiving representations. Finally, it draws a sharp distinction between nuclear safety regulation and nuclear energy policy, protecting the independence of safety regulators from political interference.