The Supreme Court of Appeal (SCA) has ruled that the decision to dismiss Peter Becker from his position as director of the board of the National Nuclear Regulator (NNR) was “arbitrary and irrational”.
The SCA dismissed three appeals against the Western Cape High Court decision last week.
Two of the appeals related to the decision by Mineral Resources and Energy Minister Gwede Mantashe to dismiss him while Becker brought a cross-appeal with a view that he could “serve the balance of his term for which he had been appointed as a director of the board”.
In his judgment, SCA Judge Pieter Meyer, said the minister “wrongly believed any director who opposes nuclear activities can be discharged for misconduct” and had not given Becker a chance to make representations before his discharge from the board.
In dismissing Becker, the minister said: “As a director of the NNR, you have placed yourself in a position in which you have a personal interest, which conflicts with your duties to the NNR. You have publicly vocalised your opinions on nuclear activity and your opposition to the lifespan extension of Koeberg, which is in conflict with the independent or neutral role and function of the NNR. There can be little doubt on how you would vote, were you still to be a member of the NNR Board, when the question of the lifespan extension for the Koeberg station comes before the NNR board. You are thus not qualified to make a decision on the board.”
Judge Meyer said: “He (the minister) plainly believed that he is entitled to discharge a director who ‘resists nuclear’ or who does not ‘advocate for’ nuclear. He was wrong. Resisting or advocating for nuclear energy – even publicly – is not misconduct for the purposes of s9 of the act. It could never be, since the role of the board is concerned with the safety of a specific proposed nuclear activity, not the desirability of nuclear activity in general.”
It was not established, on an objective basis, that Becker committed ‘misconduct’, read the SCA judgment.
“Furthermore, if the minister was correct that Becker’s views about nuclear desirability justified discharging him, then the same would necessarily apply to the other directors who have expressed favourable views about nuclear energy.
On the minister’s approach, they too would not be able to exercise a proper judgment about the safety of a proposed nuclear activity, because they favour nuclear power.
“This demonstrates the fallacy in the minister’s contentions ... the minister wrongly believed that he could discharge a director in anticipation of misconduct by that director. The minister contends that he was entitled to reach a conclusion that Mr Becker was guilty of misconduct, on the basis of conduct that Mr Becker would commit in the future.
“This is no ground for a finding of misconduct. The minister speculated that Becker would bring a biased mind to bear on future decisions of the board,” states the judgment.
Becker’s cross-appeal had been dismissed due to it being “legally unsustainable”, Judge Meyer ruled after Becker’s three-year term had expired on June 5, 2024.
“It is not known whether those communities which may be affected by nuclear activities would want Becker to again represent them on the board, or whether they would prefer to nominate someone else.,” said Judge Meyer.
Cape Times