STATEMENT BY DEAT REGARDING JUDGMENT IN THE HIGH COURT IN THE MATTER BETWEEN EARTH LIFE AFRICA, DEAT AND ESKOM

27/01/2005: “ The essence of the court’s judgment regarding the EIA process on the PBMR is to further lengthen what already is a highly inclusive and participatory process, the result of which is that the country’s development program will be hamstrung, in a manner that could undermine good intentions of ensuring that environmental concerns are taken into account in the country’s reconstruction and development program” said JP Louw, Chief Director Communications in the department of Environmental Affairs and Tourism, reacting to the Cape High Court judgment on the PBMR involving Earth-life Africa and the department..
Important to note in this judgment is that the court deliberately restricted itself to procedural matters and stated that its judgment did not seek to express an opinion on the merits of the modular reactor itself or the nuclear power.

The effect of the judgment on the EIA process is to insert two additional steps that have not been part of the process to date. Firstly the judgment allows judicial review of the DG’s decision to take place before the internal remedies (i.e. the appeal process to the Minister) have been exhausted. Normally such judicial review would only take place after the Minister has considered the appeals.

Secondly the judgment requires that a second round of consultation and stakeholder submissions must take place after the EIA report has been submitted to the DG for consideration (despite very lengthy and exhaustive consultations already undertaken by the developer and independent EIA consultants).

The judgment seems to be in contradiction of the view of the Constitutional Court that “a court should be slow to impose obligations upon government which will inhibit its ability to make and implement policy effectively”.

The Department has consequently decided to appeal against the decision of the High Court.