THE legal battle over the proposed R200 billion Karpowership deal will be heard over three days in court in June, as the Turkiye company fights the bid to force the government to can the deal.
According to North Gauteng High Court Deputy Judge President Aubrey Ledwaba, the matters brought by the Organisation Undoing Tax Abuse (Outa) and The Green Connection (TGC) non-profit company (NPC) are set down for special motion to be heard together between June 4 and 6.
He told parties in both cases that should it transpire for any reason that the matters will not proceed to inform his office immediately.
”Non-availability of counsel representing any of the parties shall simply not be allowed as a reason for the matter not to proceed on the date of hearing arranged with my office,” explained Judge Ledwaba.
He also warned that should his directive not be complied with, the matters may not be allocated to a judge and the allocated dates will be utilised for other deserving cases.
In addition, Outa also wants details of the deal to be released to the non-profit civil rights organisation for its experts to scrutinise the documents submitted by Karpowership for the lucrative contract.
Like Outa, the TGC has also approached the North Gauteng High Court to compel the National Energy Regulator of SA (Nersa) to comply with court rules.
”It (Nersa) is not permitted to unilaterally decide what documents should be included in the rule 53 record without seeking the consent of TGC or permission from the court,” states the NPC in court.
In its review application, Outa explains that it is evident that the enormous projected costs of the Karpowership project over a period of 20 years (estimated by Outa to be in excess of R200bn) will have an impact on South African taxpayers and whether there was proper cost consideration is one of the great concerns with the award of the generation licences.
”Despite the financial information being relevant to the review application, the projected costs of the 20-year project and whether it is value for money have been kept secret: all information about charge rates and tariffs was redacted from the rule 53 record,” Outa complained.
The organisation said all the information as to how the fluctuation in the dollar/rand exchange rate over the next 20 years was dealt with in the decision-making process was also redacted.
Both Nersa and Karpowership want Outa’s application to dismissed.
Nersa has stated that it has a mandate as a regulator and a duty to protect all the confidential information disclosed to it and that it will be acting contrary to its own policy and guidelines, absent any confidentiality regime having been concluded, by disclosing any of Karpowership’s confidential information to third party.
However, Outa insists that Nersa does not have the right or power to refuse full disclosure or to impose conditions.
”If Nersa were of the view that it had grounds to refuse full disclosure of the record, it should have applied to court for condonation and shown that it is in the interest of justice for the court to condone its non-compliance with the provisions of rule 53(1)(b),” the organisation argues in its court papers.
Rule 53(1)(b) of the uniform rules of court requires Nersa to within 15 days after receipt hereof to despatch to the registrar to the court the record of the decision that Outa wants to be reviewed and set aside.
This includes all correspondence, reports, memoranda, documents, evidence, transcripts of recorded proceedings and other information serving before the regulator when the decision(s) was/were made together with such reasons as by law they are required to give or desire to make, and to notify Outa and TGC that they have done so.
Outa wants the complete and unredacted record in the review proceedings including any documents that Nersa and Karpowership claim to be confidential.
It is also prepared to sign a confidentiality undertaking that prevents it from disclosing the documents but its lawyers must be able to disclose the full record including any allegedly confidential documents to its expert witnesses subject to them also signing the confidentiality undertaking.
Karpowership was selected as the preferred bidder for the procurement of 450 megawatts (MW) each in Ngqura and Richards Bay, in the Eastern Cape and KwaZulu-Natal, respectively, and 320MW in Saldanha Bay in the Western Cape for the risk mitigation independent power producer procurement programme through massive floating storage vessels connected to the national power grid.
loyiso.sidimba@inl.co.za