Fri, 20 Sep 2019

It was a somewhat hollow victory for former Nuclear Energy Corporation of South Africa (Necsa) board members Kelvin Kemm, Pamela Bosman and Phumzile Tshelane, in a judgment handed down in the North Gauteng High Court by Justice A J Mtati in Pretoria on Friday 16 August 2019.

This follows an urgent application brought by Kemm, Bosman and Tshelane in December 2018 to have their dismissal as directors of Necsa by former Minister of Energy Jeff Radebe reviewed, declared unlawful and set aside, and to be reinstated as directors of Necsa and the suspension of Tshelane as CEO lifted.

Ultimately, the full 22-page judgment delivered by Judge Mtati was remarkably short and concise, bearing in mind the voluminous court papers of over 2000 pages that were put before the judge. In his judgment, Judge Mtati ruled, largely on procedural grounds in terms of the Promotion of Administrative Justice Act (PAJA), that the applicants' dismissal as directors at the time was unlawful and set aside.

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However, the applicants were not ordered to be reinstated as board members of Necsa. The judge ruled that "this remedy has been overtaken by events since the applicants' term of office has already lapsed [on 23 March 2019]".

Furthermore, Tshelane's application for his suspension as CEO of Necsa to be lifted was dismissed by the judge, and Tshelane therefore remains suspended.

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The minister was not found to have acted ultra vires, nor did the judge find that then Minister of Energy Jeff Radebe had ulterior motives in the actions that he took, as alleged by the applicants.

"Hasty he definitely was, but [this was] in pursuance of restoring the stature of Necsa as an institution", ruled Judge Mtati.

The judge further ruled that "in the circumstances of this matter, the applicants [Kemm, Bosman and Tshelane] were not totally successful, nor is the minister".

Therefore on the matter of costs, the judge ordered that "each party shall bear his/her own costs".

This acrimonious dispute started with the extended closure of Necsa NTP Radioisotopes' medical nuclear radioisotope production facility in Pelindaba by South Africa's National Nuclear Regulator (NNR) in November 2017, on safety grounds. NTP Radioisotopes is a wholly owned subsidiary of Necsa.This triggered serious internal governance problems and power struggles within Necsa and NTP Radioisotopes, as the companies struggled to bring the NTP Radioisotopes production facility back on stream.

The governance problems and extended production shutdown of the production facility had a devastating impact on the global business of NTP Radioisotopes, which accounted for about 50% of Necsa's revenue.

As a result, the publishing of Necsa's annual 2017/18 annual financial results was delayed, and when finally published in early 2019 revealed even deeper operational, financial and governance problems, and a devastating qualified audit report by the Auditor General.

Former Minister of Energy Jeff Radebe's actions to restore some semblance of order at Necsa finally resulted in his dismissal of the entire previous board of Necsa, and the suspension of Tshelane as CEO.

Following their dismissal, there were wild allegations of treasonous and corrupt conspiracies, directed by Kemm and Tshelane at Radebe, in media statements and in their court papers.

It was alleged that Radebe and murky financial interests associated with him were corruptly and irregularly attempting to dispose of NTP Radioisotopes, a strategic South African state-owned enterprise, to American interests.

However, the judge found that the minister did not have ulterior motives in the actions that he took, as alleged by the applicants, but instead acted in pursuance of restoring the stature of Necsa as an institution.

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