The Cape High Court decision in April 2017 setting aside the Minister of Energy’s decision determining the requirements for procurement of nuclear generation capacity and tabling of the related Russian intergovernmental agreement (IGA) in parliament usefully reminds us of a few important principles of constitutional and administrative law:
- Whilst the courts will not usually interfere with purely executive policy decisions of government, if the decisions have a direct external legal effect on other parties (for instance in this case electricity providers of oil, gas or renewable energy) they can be reviewed by a court under the Promotion of Administrative Justice Act.
- NERSA’s decision concurring with the Minister was reviewable because there had been no public participation despite NERSA being under a statutory duty to act in the public interest and in a justifiable and transparent manner when exercising its discretion.
- NERSA’s failure to gazette the determination for two years was irrational and unlawful and violated the requirements of open, transparent and accountable government as well as the statutory requirements, thus breaching the principle of legality.
- NERSA’s concurrence with the Minister’s determination within three days of being asked by the Minister to do so made public participation impossible and breached their obligation to afford the public and interested & affected parties an opportunity to influence the decision.
- The applicant, which is a non-governmental, non-profit voluntary association that mobilises civil society around environmental issues, had legal standing to bring the application to set aside the tabling of the Russian IGA because section 38 of the Constitution allows anyone to assert that a right in the Bill of Rights has been infringed or threatened. Unconstitutional actions can therefore be challenged by such a body in the public interest.