National Nuclear Regulator
Where's the transparency in the National Nuclear Regulator board?
The process for appointing the board of the state-owned National Nuclear Regulator is legally meant to be transparent, to strengthen oversight in this potentially dangerous industry. But the Cabinet has failed to honour this requirement. OUTA queried this and officials were slow to respond, then said that the civil society representatives legally required as part of the board will be identified in a restricted process. OUTA objects to this.
Nuclear energy requires additional governance structures to ensure that there is adequate oversight and to mitigate the potential risks.
The National Nuclear Regulator (NNR) is a state-owned entity (SOE) set up by law (the National Nuclear Regulator Act 1999). The Act sets up a board which includes representatives from the public, namely civil society, business and labour. The Act sets out particular processes for establishing the board, to ensure that a transparent process is used when appointing board members.
The board is appointed by the Minister of Mineral Resources and Energy and must include one representative from organised labour, one from organised business and one representing communities who may be affected by nuclear activities, plus up to 10 other directors.
The NNR is to provide for the protection of people, property and the environment against nuclear damage through regulation and safety standards. This includes control the siting, design, construction and operation of nuclear installations, and ensuring that provisions for nuclear emergency planning are in place.
Koeberg, South Africa’s only nuclear power station, is now 35 years old and plans are in place to extend its lifespan. However, there are serious concerns about its ageing parts and the ability of Eskom to maintain the nuclear reactors to the highest standards needed to ensure the safety of the public. This is revealed in a report by the International Atomic Energy Agency (IAEA) which inspected the plant in September 2019.
The Cabinet announced the new board for the National Nuclear Regulator on 5 August 2020.
The Cabinet announcement is here.
These are the board members:
1. Dr Thapelo Motshudi (Chairperson);
2. Ms Dineo Peta (Deputy Chairperson);
3. Mr Protas Phili;
4. Ms Devinagie Bendeman;
5. Dr Nomusa Qunta;
6. Mr Bernard Pelei Petlane;
7. Mr David Mamphitha; and
8. Ms Lindelwa Dlamini.
9. NNR CEO: Dr Mzubanzi Bismark Tyobeka
Cabinet approved the new NNR board August 2020, but there was no clarity on the process for the appointments.
South Africa is a member of the international Open Government Partnership (OPP), which is committed to transparency and public participation in government. However, the Department of Mineral Resources and Energy (DMRE) way of operating does not seem to live up to those commitments, but gives rise to the perception that there are decisions being taken behind closed doors.
On 25 September 2020, OUTA wrote to the Director-General of the DMRE, Advocate Thabo Mokoena. A copy of this letter is here. A formal acknowledgement of the letter from the DMRE was received on 28 September 2020.
Unfortunately, no substantive response was received from any of the officials at the DMRE.
On 10 October 2020, OUTA sent an email querying the lack of substantive response but no response was received.
OUTA has followed an administrative process to gain information on something that should be publicly available and it is disturbing to note that after five weeks, no substantive response is forthcoming to what should be a routine inquiry.
On 2 November 2020, OUTA wrote to the Minister of Mineral Resources and Energy requesting answers. A copy of this letter is here.
However, email addresses to the Minister bounced even though emails to the DMRE went through. Phone calls to the Pretoria number found a message stating that the inbox was full, so OUTA eventually resorted to hand delivering the letter on 6 November.
Hours after hand-delivering the letter to the Minister, Director-General Mokoena sent a response dated three weeks earlier: the DG said the board vacancies were published in the Government Gazette in August 2019, and declined to identify anyone on the panel which chose the board. "The process aimed as securing the appointment of the representatives of organised business and civil society is currently underway," said the DG, adding that this was being done through consultation with NEDLAC and the South African National Civic Organisation (Sanco), and that those identified would be considered by Cabinet prior to their appointments being effective and their identities made public. The DG's letter is here.
The elaborate and tedious process of being referred from pillar to post in order to obtain answers that should be in the public domain raises questions about the transparent and effective governance of the nuclear industry.
The restriction of the "consultation" on the civil society representative to a single civil society organisation with a limited footprint and no track record in nuclear energy matters is inadequate. Broader civil society should have a say over who that representative is. Instead, this process seems designed to pay lip service to the requirement for consultation.
The fact that the business and civil society representatives – we note there is no mention of the representative for organised labour – were omitted from the board appointments gazetted in August 2020 gives rise to suspicion that there had been no intention of appointing such representatives until this was queried by OUTA and other civil society organisations.
For the NNR board to continue to operate without stakeholder representatives, undermines the spirit and the letter of the law and raises the issue of how accountable is the NNR to the public.
OUTA calls into question the legitimacy of any decisions that are being taken behind this veil of secrecy and obfuscation.
On 5 November 2020, OUTA joined with other civil society groups to call for the civil society appointments to the board and for greater transparency. The joint statement is available here.
On 21 April 2021, the Cabinet approved the appointment to the NNR board of Koebert Alert Alliance's Peter Becker, attorney Vuyiswa Miya, National Union of Mineworkers' energy coordinator Khangela Baloyi, and Allan Taylor, a former special advisor to former Energy Minister Tina Joemat-Petterssen. OUTA welcomed Becker's appointment. Becker said: "The NNR board has been without a civil society representative for nearly nine months and while this announcement is welcome, it is long overdue. Civil society is an essential part of oversight for government and this is a step towards ensuring the NNR applies the highest international safety standards to nuclear installations in South Africa, and the Koeberg plant in particular."
On 17 January 2022, the National Nuclear Regulator board blocked civil society board member Peter Becker from a meeting. Minister Gwede Mantashe subsequently suspended Becker from the board, citing misconduct. That board meeting took a key decision on extending the life of Koeberg nuclear power station, a project which has not gone through any public consultation process. OUTA opposes the removal of Becker from the board; see OUTA comments here.
In September 2022, OUTA filed two requests for information to the NNR in terms of the Promotion of Access to Information Act (PAIA), asking for: copies of all NNR board resolutions, decisions and minutes of meetings in January and February 2022, and all information the NNR sent to the Minister of Mineral Resources and Energy in support of its call for Becker’s removal; and on the declared conflicts of interest reported by board members and copies of all board meetings from April 2021 to January 2022 (see here and here). The NNR refused both requests and appeals.
In January 2023, OUTA filed two complaints with the Information Regulator over the NNR’s refusal to comply with both requests for information. See the outline of the complaints here. The outcome is awaited.
On 19 January 2023, in a victory for civil society, the Western Cape High Court reinstated Becker to the NNR board. See the judgment here. The judgment clarifies the board’s role in ensuring safety standards rather than propagating for nuclear energy. The court found that Peter Becker’s engagements with civil society organisations during his board tenure (in his capacity as a civil society member not a board member) do not amount to a conflict of interest and that his removal from the board was unconstitutional and unlawful. See OUTA comments on the judgment here.
Eskom intends to extend the life of Koeberg nuclear power station but the National Nuclear Regulator, which watches over Koeberg, has dropped its civil society representatives
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