The National Energy Regulator of South Africa (NERSA)’s opposition to an interlocutory application should not be misconstrued as being frivolous or obstructive. This is according to Charles Hlebela, Head of Communications at NERSA, responding to the Green Connection’s urgent request to the High Court to force the Regulator’s hand to supply critical information regarding the Karpowerships deals.
The legal action is over Nersa’s decision to grant three electricity generation licenses to Karpowership SA companies to operate powerships in the ports of Saldanha, Ngqura (Coega) and Richards Bay.
Liz McDaid of the Green Connection said NERSA granted the licenses unlawfully.
“Since the start, the Karpowerships deals were mired in controversy, characterised by such irregularities. This court case essentially aims to force NERSA to share more details regarding the Karpowerships deals, which we need to support our larger challenge, and which the Regulator refuses to make available. For instance, we need costing information to better understand how the price of electricity could be affected if supplied by these floating kettles. And with what has happened in Sierra Leone and Guinea Bissau, where Karpowerships cut power for extended periods, due to these countries’ inability to pay their electricity bills, it is clear that South Africa, which already has so many other challenges, should know what we are getting ourselves into” she said.
But Hlebela said the following is the proper context regarding NERSA’s opposition to Green Connection and OUTA’s interlocutory application to compel NERSA to file confidential records in the public record.
He listed a sequence of events leading to the current situation, “on 25 May 2020, NERSA concurred with the Minister of Mineral Resources and Energy on the new generation determination. The concurrence was subjected to stakeholder consultation and a public hearing process, as required by the National Energy Regulator Act, 2004 (Act No. 40 of 2004), read with the Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000).
On 13 April 2021, NERSA received electricity licence applications from Karpowership SA Saldanha Bay (RF) (Pty) Ltd, Karpowership SA RF Coega (RF) (Pty) Ltd and Karpowership SA Richards Bay (RF) (Pty) Ltd in line with the Electricity Regulation Act, 2006 (Act No. 4 of 2006). NERSA granted generation licences to Karpowership as part of the Risk Mitigation Independent Power Producer preferred bidder
process. On 26 April and 4 May 2022, Green Connection and OUTA took NERSA’s decision on judicial review. NERSA resolved to oppose the application and filed its record of decision as required by Rule 53 of the Uniform Rules of Court. NERSA filed a redacted record, as a confidentiality decision had been made in
terms of the Promotion of Access to Information Act, 2000 (Act No. 2 of 2000), based on the request by Karpowership and in accordance with NERSA’s processes.”
He said OUTA and Green Connection filed an interlocutory application to compel NERSA to file the confidential record in the public record. Both NERSA and Karpowership opposed the application. However, Karpowership withdrew its opposition, but did not give NERSA the authority to release the confidential information.
NERSA therefore continued to oppose the application to preserve the decision and not
violate the Promotion of Access to Information Act, 2000.
The interlocutory case was heard a day before World Environment Day, on the 04th of June 2024, at the Gauteng High Court.
Programs Officer at Earthlife Africa, Ulrich Steenkamp, said “South Africa is in an energy shortfall, but we cannot marry ourselves in a contract with fossil fuel industry, when we are supposed to be decommissioning our old existing coal, fire stations. The gas burnt on the ships could have a huge impact to climate change. We should rather be accelerating and investing in renewable energy so that our just transition targets can be achieved as soon as possible. This is the main reason that Earthlife Africa supports The Green Connection’s court case, as they are fighting for truth and justice, and fighting for the upliftment of South Africa and for the protection of the ocean and coastal livelihoods.”
NERSA said it remains committed to transparency and adherence to the Constitution pertaining to access to information and will now focus on the pleadings in the judicial review of its decision to approve Karpowership’s electricity generation licences.