Activist Peter Becker was appointed to the board of the National Nuclear Regulator (NNR) on 10 June 2021 as its community representative after being nominated by civil society organisations including the Koeberg Alert Alliance (KAA), the Southern African Faith Communities’ Environment Institute and the Pelindaba Working Group. 

The NNR is a public entity, overseen by the Department of Mineral Resources and Energy. According to its website, the regulator was established “to provide for the protection of persons, property and the environment against nuclear damage through the establishment of safety standards and regulatory practices”.

Becker, meant to serve on the NNR board for a period of three years, was fired on 25 February for “misconduct”, with the minister of energy and mineral resources, Gwede Mantashe, stating in a suspension letter that Becker’s presence on the board “may prejudice its effective and efficient functioning”.

Becker has instituted legal action against Mantashe, and the matter was heard virtually in the Western Cape High Court on 9 November, with Becker asking that the decision to dismiss him be reviewed and set aside. 

According to court documents, the minister’s take is that even though he appointed Becker to the board knowing that he is an activist, it was problematic that Becker, “continued to express his political views after his appointment, in a manner which made it evident that these views would infect his ability to act as a neutral member of the Board”.

Mantashe refers to Becker as wearing three conflicting hats: “one as a member of the NNR Board, one as a representative on the Board, and one as the spokesperson of the KAA.  

“Unfortunately, the applicant appears to have believed that after his appointment as a director of the NNR, he could remain as the designated spokesperson for KAA; and leverage his position as a director of the NNR to promote the KAA’s agenda,” reads Mantashe’s answering affidavit.

“[T]he applicant’s expressed views, in whichever capacity they were made, evidenced that he had allowed himself to be caught in a conflict of interests. His single-minded commitment to promote his own political views led to the ineluctable conclusion that he could not remain true to his neutral role as a director of the NNR,” reads the document.

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Becker was represented at the hearing by instructing attorney Andrew Dorer, senior counsel Geoff Budlender and junior advocate Mitchell de Beer. Budlender argued that Becker had been sacked not because of what he had done, but because of what the minister feared he would do when the board had to make a decision. 

“We say that is not misconduct. Misconduct is what you have done, not what someone fears you will do,” said Budlender.

David Borgström SC, who represented Mantashe, said Becker had indeed committed misconduct.

“[E]ven after you are appointed as a board member, supposedly while wearing your KAA hat, that does not entitle you to attack the very body on whose board you sit and to question its integrity and its discharge of its statutory obligations in public and that is what we say Mr Becker has done,” said Borgström.

“Becker has expressed himself in public on the safety of the operations of Koeberg and that is the very issue that will come before him if he is a member of the board, and therein lies the board’s view that he has committed misconduct and is not suitable to continue to be a member of the board,” he said.

“When I stand outside the board, I believe I’m still permitted to talk about Eskom, load shedding, expenses, best solutions, renewable energy,” Becker told Daily Maverick before his hearing. “When I go and sit on the board I’m working within the constraints of the board, which I understood fully.”

Becker said having people with a variety of opinions on a board is good for decision-making, and being pro- or anti-nuclear, as well as being involved in anti-nuclear action outside of the board, should not be grounds for dismissal, especially if that action is concerned with public safety. 

“Not once in any board meeting did I say, ‘I think nuclear is bad’, because that’s not the role of the board. It’s, ‘here’s an application, is it safe, does it meet the safety requirements?’ It’s true that someone who is unconvinced that nuclear power is a good idea is going to be very thorough when looking at whether an application satisfies all the requirements or not and you might say someone who is in favour of nuclear power would be a little more lenient. So, what makes sense is to have a board made up of diverse people, with diverse opinions, so these things can be debated,” said Becker.

‘If you resist nuclear … I fire you, simple’

The energy minister has consistently taken a pro-coal, pro-nuclear stance in the face of the climate crisis. While acknowledging international pressure for a just transition, he has called Koeberg one of the cheapest forms of power, describing it as “efficient” and “reliable”. 

“Our energy transition approach towards a low-carbon emitting system or net-zero should not be driven by technology preferences but by energy system requirements and innovative use of indigenous resources which include the sun, wind, nuclear, water, coal, oil and gas,” Mantashe said during a speech at the 11th annual Windaba in Cape Town on 12 October.

On 7 May, two months after firing Becker, Mantashe made a speech at the ANC’s Eastern Cape elective conference in East London during which he said: “If you resist nuclear and you [are] a board member, I fire you, simple. You can’t be a board member of something you’re not advocating for.”

This is one of Becker’s main concerns, that a minister who promotes nuclear power is the same minister who hires and fires on the regulatory board.

“There’s the possibility that he might abuse that power and undermine the independence of the NNR further by, for example, dismissing someone from the board who is a critical voice of nuclear power,” said Becker.

Intersectional youth climate activist Gabriel Klaasen is of the view that without civil society representation the NNR cannot be an authentic board.

“It’s devastating to see that the one pillar of civil society representation has been removed. We’ve ended up in a situation now where we don’t have that voice. Without Becker present, no doubt things will continue without communities’ voices present. It’s horrific,” said Klaasen.

Curb your activism

Becker is not the first activist who has come under fire at the regulator. Activist Mariette Liefferink, director of the Federation for a Sustainable Environment, occupied the same seat from December 2009 and did not see out her term.

Liefferink described the board as “problematic”, and said being a member of it was emotionally and mentally distressing.

“I understood that I should represent the grievances of communities, but every time I raised these issues I was constantly cautioned that I should wear the hat of a board member, not an environmental activist. It was a long time ago, but I felt I could do more good outside the board,” said Liefferink.

She was most concerned about communities affected by radioactive waste, including waste from Koeberg, the radioactive waste disposal facility at Vaalputs, operated by Necsa, and naturally occurring radioactive material within the gold fields of the Witwatersrand.

“The tailing storage facilities that house the waste of the gold mines contain elevated levels of uranium and uranium that can remain active for geological ages, not just biological ages. I tried to raise these concerns, but it was very difficult to obtain information regarding these matters. As a board member I had to bring a PAIA [Promotion of Access to Information Act] request, which is rather perplexing, that a board member had to bring a PAIA application, that this information would not be freely available,” said Liefferink.

Construction of Koeberg began in 1976, with Unit 1 and Unit 2 being synchronised to the grid in April 1984 and July 1985, respectively. According to the World Nuclear Association, Koeberg produces between 2.5% and 5% of South Africa’s electricity. The plant was built by Framatome, a nuclear power company based in France, and operates under a 40-year licence. The licence comes to an end in 2024 and Eskom has applied to the nuclear regulator to extend it for another 20 years.

According to reports, back in 2010 the cost to extend Koeberg’s lifetime was around R20-billion. But stretching out the life of a nuclear plant that was built in the mid-1970s is a safety consideration as much as it is a financial one. In a post-Fukushima world, international regulatory bodies have played an essential role in flagging compromised structures that oversee nuclear plants. 

Regulator’s independence queried

A team of experts from the International Atomic Energy Agency (IAEA),  which “seeks to promote the safe, secure and peaceful use of nuclear technologies”, carried out a review of Koeberg over the course of two weeks in 2013 and voiced concern at the nuclear regulator reporting to the department that it is supposed to regulate.

“Considering that the Minister of Energy is also in charge of the promotion of nuclear energy and given that the Minister appoints the NNR Board and CEO, approves NNR’s budget and promulgates regulations, the INIR [Integrated Nuclear Infrastructure Review] team is of the view that the separation between the regulatory functions and the promotional activities is not adequate, thus calling into question the effective independence of the NNR,” reads the report.

Becker agrees that the “cosy” relationship between the regulator and the energy department means that anyone on the board who disagrees with the minister could easily be booted out or silenced. 

“Board members are paid per meeting, so in my first month there was an induction meeting and I was on two subcommittees, so I got just over R30,000 in fees. So that’s not an insignificant amount and one can imagine that for many activists, particularly grassroots activists, that would be a very significant amount of money,” said Becker. “One could anticipate that many such people would be quite happy to become silent, to end their criticism. But they picked the wrong person if that was their expectation.”

His hope is that the upcoming judgment will set a precedent for future community representatives that even though they must act within the policies and the functions of the board, they are still free to criticise Eskom, question the expenditure of the government and the energy policy of the country, “because that is what activists do”.

“If activists are not allowed to criticise government policy and are now suddenly meant to loyally execute the policy of the day, I think it undermines the intention of the NNR Act,” said Becker.

“This concept of not having communities represented on the board is deeply wrong and the way it’s being done is deeply wrong. And if I sit back, it sets a precedent and the next person appointed needs to either be pro-nuclear or must not speak and not criticise government policy or actions,” he said.

Questions were sent to the National Nuclear Regulator’s spokesperson, Gino Moonsamy. Despite numerous calls, emails and WhatsApp messages, no reply was forthcoming. DM/OBP