Nuclear Monitor Issue: 

(September 16 2005) The Johannesburg High Court has, in a somewhat confounding judgement on September 2, granted state-owned power utility Eskom an interim order banning Earthlife Africa (ELA) - and "all persons" including the media - from publishing or broadcasting information the utility itself sent to the environmental organization.

(634.5715) WISE-Amsterdam - In issue #632, the Nuclear Monitor reported, in brief, on Earthlife Africa's court case against Eskom. The organization was seeking to force the utility to release information under the Access to Information Act. Eskom released some information to ELA in the form of power point presentations but failed to include the minutes of its board meetings and other information requested. Arguing that the information supplied was wholly insufficient, Earthlife continued with the lawsuit against the utility. The case was heard on August 30; however, the judgement is yet to be given.

The documents provided by Eskom's lawyers included Pebble Bed Modular Reactor (PBMR) business plans and a financial risk assessment for the proposed project. The 120 pages are now subject to a gagging order because Eskom has since revealed that it sent ELA the wrong documents "by mistake" and has asked that the documents be returned. The papers it gave the NGO were apparently destined to be used in preparation for the case brought by Earthlife and supposedly contained "trade secrets".

The documents apparently reveal that a business-risk assessment, commissioned by Eskom, found that PBMR would be uncompetitive in the South African market and warned of the excessive costs of the project should Eskom fail to attract any other investors to the scheme. So far, no other investors have been joined the project and those initially interested - like U.S. Exelon and French Areva - have withdrawn from the project. The issue of excessive costs is of course one of the arguments ELA and other groups have been making for years so it is refreshing to hear that the utility also recognises this fact - finally.

ELA is seeking to gain access to the information (especially on health impacts and economics) used to justify investment in the PBMR project in order to assess whether or not such an investment of huge amounts of public funds - 14.5 billion Rand (approx. US$2.3 billion) - really is in the public interest. The organization believed that safety concerns were not being addressed and that no economic benefits had been demonstrated. It also suspected that these issues would have been discussed at Eskom Board level and given that Eskom is a public entity, the organization felt that the public had a right to more details. After following all the relevant administrative channels to access the board minutes, ELA was forced to seek legal redress after Eskom refused its numerous requests.

At the time ELA spokesperson Olivia Andrews said, "Earthlife Africa is hoping that some of the information in the Eskom board minutes will shed some light on the reasons that Eskom opted for expensive untested nuclear technology when investing in energy efficiency and conservation measures would, in our view, have been a far more effective solution".

Now Eskom claims that the papers it released to ELA in fact contained "trade secrets" but whose fault is that? The papers were not stolen nor were they leaked in the traditional sense. The utility's lawyers handed them over and ELA subsequently circulated some of the information believing it to be in the public interest but now Eskom is attempting to turn back time. Can this company really be entrusted with precious public funds when it apparently cannot even keep track of its own paperwork?

ELA has other outstanding suits against Eskom and is challenging the planned construction of the reactor on various grounds, including the Environmental Impact Assessment process. In January, the Cape Town High Court ruled in the organization's favour by setting aside existing authorisation given for the PBMR project in 2003 (see also WISE/NIRS Nuclear Monitor 623.5663 "Earthlife victory in court on PBMR EIA").

The hearing to review the order and determine whether or not the documents should remain confidential will be held on October 18.

Sources: Nuclear Engineering International, September 7, 2005; The Cape Times, September 6, 2005; Earthlife Africa press release, September 5 & June 20 2005; Business Day, September 2 & 5, 2005

Contact: Olivia Andrews at Earthlife Africa in Cape Town
Tel.: +27 72 5098402 or +27 21 4474912