THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 1199/2023
In the matter between:

MINISTER OF MINERAL RESOURCES AND ENERGY Appellant

and

PETER BECKER First Respondent
NATIONAL NUCLEAR REGULATOR Second Respondent
CHAIRPERSON OF THE BOARD OF DIRECTORS
OF THE NATIONAL NUCLEAR REGULATOR Third Respondent

Case no: 966/2023
And in the matter between:

NATIONAL NUCLEAR REGULATOR First Appellant

CHAIRPERSON OF THE BOARD OF DIRECTORS
OF THE NATIONAL NUCLEAR REGULATOR Second Appellant

and

PETER BECKER First Respondent
MINISTER OF MINERAL RESOURCES AND ENERGY Second Respondent

Case no: 1013/2023
And in the matter between:

PETER BECKER Appellant

and

MINISTER OF MINERAL RESOURCES AND ENERGY First Respondent

2

NATIONAL NUCLEAR REGULATOR Second Respondent
CHAIRPERSON OF THE BOARD OF DIRECTORS
OF THE NATIONAL NUCLEAR REGULATOR Third Respondent

Neutral citation: Minister of Mineral Resources and Energy v Becker and Others
(Case no 1 199/23); National Nuclear Regulator and Another v
Becker and Another (Case no 966/2023); Becker v Minister of
Mineral Resources and Energy and Others (Case no 1013/2023)
[2024] ZASCA 106 (28 June 2024)

Coram: MOLEMELA P, SCHIPPERS and MEYER JJA and TLALETSI and
KOEN AJJA

Heard: 17 May 2024

Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal website
and released to SAFLII. The time and date for hand -down is deemed to be 11h00 on
28 June 2024.

Summary: National Nuclear Regulator Act 47 of 1999 – Board of Directors of
Regulator appointed by the Minister of Mineral Resources and Energy in terms of s
8(4) – Minister’s power in terms of s 9(1) to discharge a director of the Board from
office inter alia for misconduct.
Constitutional and Administrative Law - principle of legality and review under
Promotion of Administrative Justice Act 3 of 2000 – whether Minister’s discharge of
Director for misconduct was unlawful, unconstitutional and invalid.

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ORDER


On appeal from: Western Cape Division of the High Court, Cape Town (Mantame J,
sitting as court of first instance):
1. The appeal of the Minister of Mineral Resources and Energy (Case no
1199/2023) is dismissed with costs, including those of two counsel where employed.
2. The appeal of the National Nuclear Regulator and the Chairperson of the Board
of Directors of the National Nuclear Regulator (Case no 966/2023) is dismissed with
costs, including those of two counsel where employed.
3. The cross-appeal of Mr Peter Becker (Case no 1013/2023) is dismissed with
each party to pay their own costs.


JUDGMENT

Meyer JA and Tlaletsi AJA (Molemela P , Schippers JA and Koen AJA
concurring):
[1] These are two appeals and a cross-appeal, with the leave of this Court, against
the judgment of the Western Cape Division of the High Court, Cape Town, per
Mantame J (the high court), delivered on 19 January 2023. Mr Peter Becker (Mr
Becker), who was a Director of the National Nuclear Regulator, was discharged as a
director by the Minister of Mineral Resources and Energy (the Minister) on 25 February
2022 in terms of s 9(1) of the National Nuclear Regulator Act 47 of 1999 (the Act).

[2] As a result, Mr Becker initiated review proceedings against the Minister, the
National Nuclear Regulator and the Chairperson of the Board of Directors of the
National Nuclear Regulator (jointly referred to as the Regulator). He challenged the
Minister’s decision on the grounds that it was unconstitutional and unlawful, and
sought an order reviewing and setting aside the decision under the Promotion of
Administrative Justice Act 3 of 2000 (PAJA) or the principle of legality.

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[3] The high court made the following order:
‘1. The decision of the Minister taken on 25 February 2022 to discharge Mr Becker with
immediate effect is declared unlawful, unconstitutional and invalid in terms of Section
172(1)(a) of the Constitution.
2. The reasons and decision[s] of the Minister taken on 25 February 2022 to discha rge
Mr Becker from his office as a Director of the Board is reviewed and set aside.
3 The first, second and third respondent [s] are ordered to pay costs of this application
including the costs of two (2) Counsel.’

[4] The appellant in the first appeal, the Minister, seeks an order upholding the
appeal with costs, including those of two counsel. The Regulator, the appellant in the
second appeal, seeks identical relief. In the cross-appeal lodged by Mr Becker , he
seeks an order that paragraphs 1 and 2 of the high court’s order ‘operate
retrospectively’.

[5] The preamble to the Act reads:
‘To provide for the establishment of a National Nuclear Regulator in order to regulate nuclear
activities, for its objects and functions, for the manner in which it is to be managed and for its
staff matters; to provide for safety standards and regulatory practices for protection of persons,
property and the environment against nuclear damage; and to provide for matters connected
therewith.’
The Regulator was established as a juristic person in terms of s 3 of the Act.1

[6] The objects of the Regulator are listed in s 5 of the Act. It reads:
‘The objects of the Regulator are to-
(a) provide for the protection of persons, property and the environment against nuclear
damage through the establishment of safety standards and Regulatory practices;
(b) exercise regulatory control related to safety over-
(i) the siting, design, con struction, operation, manufacture of component parts, and
decontamination, decommissioning and closure of nuclear installations; and
(ii) vessels propelled by nuclear power or having radioactive material on Board which is

(ii) vessels propelled by nuclear power or having radioactive material on Board which is
capable of causing nuclear damage,
through the granting of nuclear authorisations;

1 Section 3 reads:
‘A juristic person to be known as the National Nuclear Regulator, comprising a Board, a chief executive
officer and staff, is hereby established.’

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(c) exercise regulatory control over other actions, to which this Act applies, through the
granting of nuclear authorisations;
(d) provide assurance of compliance with the conditions of nuclear authorisations through the
implementation of a system of compliance inspections;
(e) fulfil national obligations in respect of international legal instruments concerning nuclear
safety; and
(f) ensure that provisions for nuclear emergency planning are in place.’

[7] The Regulator is governed and controlled, in accordance with the Act, by a
Board of Directors. The Board must ensure that the objects of the Regulator referred
to in s 5 are carried out; it also exercises general control over the performance of the
Regulator’s functions.2 The Board consists of the following directors appointed by the
Minister: (a) one representative of organised labour; (b) one representative of
organised business; (c) one person representing communities which may be affected
by nuclear activities; (d) an official from the Department of Minerals and Energy; (e)
an official from the Department of Environmental Affairs and Tourism; (f) not more than
seven other directors; and (g) the Chief Executive Officer.3

[8] A director holds office for a period specified in the letter of appointment but not
exceeding three years and may be reappointed upon expiry of that term of office.4 The
Minister may at any time discharge a director of the Board from office if the director
has repeatedly failed to perform his or her functions efficiently, or if, because of any
physical or mental illness or disability, the director has become incapable of performing
his or her functions, or of performing them efficiently, or for misconduct.5

[9] The Regulator’s role is thus to ensure safety in respect of all nuclear activities
when they are undertaken. The stated policy of the government and the Department
of Mineral Resources and Energy (the Department) is the extension of Koeberg’s

of Mineral Resources and Energy (the Department) is the extension of Koeberg’s
lifecycle and the extension of nuclear energy as a component of the ‘energy mix’ in
South Africa. The Board is not involved in determining governmental policy regarding
the use of nuclear energy.

2 Subsections 8(1) and (2).
3 Subsection 8(4).
4 Subsection 8(12)(b).
5 Subsection 9(1).

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[10] On 10 June 2021, the Minister appointed Mr Becker as the non-executive
director of the Board of the Regulator in terms of s 8(4) (a)(iii) of the Act as a person
representing ‘communities, which may be affected by nuclear activities’. At the time of
his appointment and throughout his tenure as a director of the Board, Mr Becker held
the position of spokesperson of the Koeberg Alert Alliance (the KAA), an organisation
that is opposed to nuclear energy in general, and in particular, to the extension of the
life-span of the Koeberg Nuclear Power Station in Cape Town. Mr Becker’s
appointment followed his nomination by civil society concerned about nuclear power
in South Africa, for and on behalf of the KAA.

[11] The Board comprises individual directors, each of whom holds divergent views
as to nuclear desirability in South Africa. However, nuclear safety is the statutorily
prescribed imperative of the Board and the guiding factor which ought to inform each
of the decisions that serves before the Board.

[12] On 30 June 2021, an article titled ‘Thyspunt nuclear hearings distract from
Koeberg problems’ was published in Energize, an online publication (the Energize
article). In essence, the article provided commentary in relation to Eskom’s application
to the Board for a license of a site located at Thyspunt, at which it intended to establish
a nuclear power station. In the article Mr Becker is identified as the spokesperson for
the KAA, and a newly appointed director of the Board. He is quoted as having said:
‘It is disappointing to see money and time being spent on pursuing nuclear power for the
Thyspunt site after the government had stated that there was no money to fund a new nuclear
build.
. . .
The existing Koeberg plant is more of a concern, where reactor 1 was down since January
due to an increasing leak rate of a steam generator within the containment building. The plant
manager, Velaphi Ntuli was then suspended on 4 June 2021 and two weeks later reactor 1

manager, Velaphi Ntuli was then suspended on 4 June 2021 and two weeks later reactor 1
was running again. Was the leak actually fixed in the short period or did the new acting plant
manager override Ntuli’s concerns? We call for transparency and that Ntuli be allowed to
speak publicly about his decision not to restart the reactor.
. . .
We should be worrying about the safety of the exist ing plant at Koeberg, especially as it
approaches the end of its design lifetime.

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. . .
There are several issues that need to be addressed before the Koeberg plant can be
considered safe by modern standards, and that will come with a significant cost, says Becker.
Much like an old car, there comes a time when it is just not worth repairing it to the point where
it is as safe as a new car. It was unwise to spend money refurbishing the plant before finding
out what would have to be done to obtain a license to extend its life. We are probably going
to have load shedding for the next 2 or 3 years. It will only make the situation worse to
repeatedly shut down Koeberg for refurbishing work over that time. Eskom has said the
refurbishing of Koeberg to allow the life extension would cost R20 billion. Based on other large
Eskom projects, this is likely to double or even triple.’

[13] On 19 July 2021, Mr Becker sent an email to Mr Gino Moonsamy of the
Regulator, which included this statement:
‘This week I am hosting a meeting of civil society organisations in my capacity as rep on the
Board. The goal is to collect the top concerns/questions relating to nuclear safety across
organisations…’
The email was then sent to the Board’s CEO, Dr Mzubani Tyobeka. His response
queried whether Mr Becker, purportedly representing the Board without its mandate,
was entitled to host a meeting with selected stakeholders. Dr Tyobeka also stated:
‘…I have no doubt that Mr Becker is driven by good intentions, but those good intentions may
be at odds with the principles of good corporate governance…’

[14] On 27 July 2021, Mr Becker sent an email to the chairperson, Mr Thapelo
Motshudi, with the subject heading ‘Request for guidance – incremental decisions’. He
queried why Eskom would be spending money on replacing its steam generators at
Koeberg in circumstances where it was uncertain whether the Board would approve
the extension of the Koeberg plant beyond July 2024.

[15] At a Board meeting held on 29 July 2 021, members of the Board questioned

[15] At a Board meeting held on 29 July 2 021, members of the Board questioned
Mr Becker’s potential conflict evidenced by his statements published in the Energize
article and invited him to explain how he would manage situations where he had to
take a position in civil society (as KAA spokesperson) which was opposed to the
Board’s processes. Mr Becker responded by stating, inter alia, that he had stated that
his engagements had been in his capacity as their representative on the Board. Mr

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Becker assured the Board that his statements to the media were not based on any
confidential information which he had acquired by virtue of his status as a director.

[16] The Board took the view that Mr Becker’s statements in the Energize article
had to be withdrawn as they were an incorrect representation of what it does and of
the decisions it makes. Mr Becker indicated that there might be an opportunity to
amend the statements to remove the impression that the Board was pursuing a pro -
nuclear power stance. It was resolved by the Board that an independent legal opinion
should be obtained on the matter. As a result of the advice received, the chairperson
addressed a letter to the Minister in which he was asked to act on the
recommendations in the opinion.

[17] In a statement to the press on 18 August 2022, Mr Becker as spokesperson of
the KAA, commented on speculation that Eskom had already concluded a contract to
extend the life of the Koeberg nuclear power plant beyond 2024 , in the absence of a
public participation process having been conducted. The KAA expressed concern over
the ‘imbalance of power between Eskom and the Board, stating:
‘The fact that the NNR receives about 75% of its revenue from application and authorisation
fees, and the bulk of that is from Eskom, only adds to this concern. Without those fees, the
NNR would not even be able to pay staff salaries.’

[18] On 14 October 2022, the Minister received a letter from Mr Becker in which he
recorded his disagreement with the Board’s legal opinion and the allegations upon
which it is based. He requested that the Minister allow him an opportunity to make
representations regarding the legal opinion.

[19] On 17 January 2022, the Minister received a legal opinion from Mr Becker’s
erstwhile attorneys, countering the legal opinion provided to the Board. On 18 January
2022, the Minister advised Mr Becker’s attorneys that the allegations against Mr

2022, the Minister advised Mr Becker’s attorneys that the allegations against Mr
Becker were of a serious nature and could affect his continued presence on the Board.
As a result, the Minister suspended Mr Becker with immediate effect, pending his final
decision. Furthermore, Mr Becker was given the opportunity to provide written
representations as to why he should not be discharged.

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[20] On 16 March 2022 , after Mr Becker’s suspension, the Daily Maverick online
news service published an article entitled ‘Koeberg nuclear power plant rejuvenation:
Protesters say silence is a killer’. In this article, Mr Becker as the spokesperson for the
KAA, is quoted inter alia having said:
‘This has a moral component, a society component, an intergenerational ethic component –
this is not for a bunch of engineers to decide alone. That is why the community needs to be
consulted, and the public needs to have their say.’

[21] On 8 February 2022, Mr Becker brought an urgent court application,
challenging the lawfulness of the Minister’s decision to suspend him. The urgent
application was settled. On 8 February 2022, the Western Cape Division of the High
Court made the settlement an order of court , inter alia providing time frames for the
delivery of Mr Becker’s written representations to the Minister regarding his discharge
as a director, and for the taking of a decision by the Minister. Additionally, provision
was made for the holding of no meetings of and the taking of no decisions by the Board
or any of its sub-committees pending the decision of the Minister.

[22] Mr Becker made written submissions to the Minister on 10 February 2022. He
expressed the view that the Minister had failed to specify the grounds for his discharge
as contemplated in s 9(1) of the Act. On 15 February 2022, the Minister wrote to Mr
Becker, setting out those grounds and providing him with a further opportunity to make
representations. Mr Becker’s representations were furnished to the Minister on 21
February 2022. In a letter dated 25 February 2022, the Minister informed Mr Becker
of his decision to discharge him from the Board and provided reasons for his decision.

[23] The Minister’s reasons were the following:
‘a. 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;

personal interest, which conflicts with your duties to the NNR;
b. 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.
Your continued involvement, when you are unable to bring an independent mind to bear on

10

decisions in relation to the safe operation and/or extension of Koeberg, because you have
already indicated your position, amounts to misconduct, in my view;
c. You hosted meetings with civil society organisations either in yo ur capacity as a member
“on” or “of” the NNR Board and gave the impression that you are acting on behalf of the NNR
Board, with no authority to do so;
d. You have acted in conflict with your obligations both in law and in contract; and
e. The conflict of interest that exists is material and fundamental as it is impossible for you to
avoid or manage the actual conflict as well as the appearance of conflict. It would on the face
of it appear that you have no hesitation to make the public aware of your conflict.’

[24] A director can only be removed in the limited circumstances mentioned in
s 9(1) of the Act. The three listed grounds for discharging a director – failure to perform,
incapacity or misconduct – are jurisdictional facts or preconditions for the lawful
exercise of the Minister’s power.

[25] Where a statute specifies the existence of a jurisdictional fact for the exercise
of the public power, ‘if the jurisdictional fact does not exist, then the power may not be
exercised and any purported exercise of the power would be invalid’.6 It follows that if
Mr Becker , objectively, was not guilty of misconduct, the Minister’s decision was
unlawful. In our constitutional era, all jurisdictional facts are reviewable by the court on
an objective basis as an integral par t of the principle of legality . The mere say -so of
the Minister that Mr Becker committed misconduct does not demonstrate that it is so.
The Act does not provide that the Minister may discharge a member of the Board if,
‘in the opinion of the Minister’ the member has committed misconduct. A Board
member may only be discharged for actual misconduct. To justify his decision, the
Minister must demonstrate that his finding of misconduct was based on reasonable

Minister must demonstrate that his finding of misconduct was based on reasonable
grounds.7 Even if the question of whether Mr Becker committed misconduct to some
extent involves a value judgment, that does not immunise the Minister’s decision from
judicial review. The Constitutional Court has expressly held that in relevant
circumstances-

6 South African Defence and Aid Fund v Minister of Justice 1967 (1) SA 31 (C) at 34H, affirmed by the
Constitutional Court in President of the Republic of South Africa and Others v South African Rugby
Football Union and Others 2000 (1) SA 1 (CC); 1999 (10) BCLR 1059 at fn 132 as the ‘leading authority
on “jurisdictional facts” in our law’.
7 Walele v City of Cape Town and Others [2008] ZACC 11; 2008 (6) SA 129 (CC) ; 2008 (11) BCLR
1067 (CC) para 60.

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‘. . . it does not follow from this that the decision and evaluation lies within the sole and
subjective preserve of the President. Value judgments are involved in virtually every decision
any member of the Executive might make where objective requirements are stipulated. It is
true that there may be differences of opinion in relation to whether or not objective criteria
have been established or are present. This does not mean that the decision becomes one of
subjective determination, immune from objective scrutiny.’8

[26] For the reasons that follow, we are of the view that on an objective basis it has
not been established that Mr Becker committed ‘misconduct’ as contemplated in s 9(1)
of the Act. First, the Minister wrongly believed that the Board is supposed to advocate
for nuclear activities. His state of mind is illustrated by what he stated at an ANC
conference in May 2022. He was quoted as saying:
‘[T]hose who resist nuclear power while serving on the Board of the National Nuclear
Regulator will be fired’
and
‘If you resist nuclear and you [are] a Board member, I fire you, simple. You can’t be in a Board
of something you’re not advocating for’.
The Minister did not make these statements in the abstract or in general; it was his
explanation of why he ‘fired’ Mr Becker. However, the Board’s functions are not to
advocate either for or against nuclear activities. Its function is to ensure that nuclear
activities are undertaken in a safe manner.

[27] Second, the Minister wrongly believed any director who opposes nuclear
activities can be discharged for misconduct. He 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 purposes of s 9 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

is concerned with the safety of a specific proposed nuclear activity, not the desirability
of nuclear activity in general.

[28] Third, the Minister wrongly conflated nuclear desirability and nuclear safety. In
the reasons for his decision to discharge Mr Becker as a director of the Board, the

8 Democratic Alliance v President of South Africa and Others [2012] ZACC 24; 2012 (12) BCLR 1297
(CC); 2013 (1) SA 248 (CC) para 23.

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Minister stated that the KAA ‘is opposed to any new nuclear plants being established,
as well as the extension of the life of Koeberg’, and Mr Becker ‘hold[s] those same
views’. T he Minister stated that Mr Becker would be unable to ‘make an objective
decision, when presented with objective, scientific evidence in respect of the extension
of the life of Ko eberg’, and therefore any decision he would make in that regard ‘will
be prejudiced as [Mr Becker had] already indicated [his] views’.

[29] This statement is unfounded . Mr Becker fully explains in his replying affidavit
that he is able to disentangle his views concerning the desirability of nuclear activities
from an evaluation of a specific activity’s safety. Mr Becker is well entitled to hold and
maintain his views about the desirability of nuclear activities while being a member of
the Board. So are the other Board members. For example, the Minister’s
representative on the Board, Mr Maphoto, plainly has strong views in favour of the
desirability of nuclear power. The Board itself and its chair have also adopted a pro -
nuclear stance, which was also included in their annual report presented to Parliament
in 2022. The Minister says that Mr Maphoto and the other Board members can
distinguish between nuclear desirability and nuclear safety and can advocate for
nuclear without a conflict of interest arisi ng. Yet, the Minister is unable to appreciate
that the rule is the same for a person who resists nuclear activities, like Mr Becker.
This is arbitrary and irrational decision-making.

[30] Fourth, the Minister wrongly believed that he c ould 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 fi nding of
misconduct. In this case, the Minister speculated that Mr Becker would bring a biased

misconduct. In this case, the Minister speculated that Mr Becker would bring a biased
mind to bear on future decisions of the Board. He based this speculation on Mr
Becker’s conduct and legitimate opinions – including what he said to the press –
pertaining to questions of the desirability of nuclear power. The Minister’s reasoning
is thus a non-sequitur. If holding such views is not misconduct, as the Minister accepts
in his affidavit, then the fact that they are held cannot be used to draw an inference
that misconduct will be committed in the future.

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[31] As a matter of fact, Mr Becker was suspended an d then discharged by the
Minister before he even had an opportunity to participate in any decision -making by
the Board relating to an application for a license for a nuclear installation or anything
related to nuclear power. Mr Becker was never given any o pportunity to demonstrate
his ability to participate in decisions about the safety of nuclear activities in an unbiased
fashion. Furthermore, if the Minister was correct that Mr 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.

[32] Fifth, the Minister wrongly believed that the disclosure of a director’s views on
the desirability of nuclear power constitutes misconduct. In his reasons for discharging
Mr Becker, the Minister explicitly records his view that Mr Becker ha d ‘publicly
vocalised [his] opinions on nuclear activity . . . conflict with the neutral role and function
of the Regulator’ and that ‘because [Mr Becker had] already indicated [his] position’
this ‘amounts to misconduct’. However, the Minister has repeatedly stated that it is
permissible for directors to hold personal views opposed to or in favour of nuclear
energy. What is pr ohibited, the Minister now says in his affidavit , is the public
expression of those views by directors on the Board. It appears t hat the Minister
believes that a director can hold views on the desirability of nuclear power, as long as
those views are not disclosed . But, the Minister again did not apply this standard to
members of the Board who publicly advocate for nuclear energy such as Mr Maphoto.

members of the Board who publicly advocate for nuclear energy such as Mr Maphoto.

[33] Sixth, the Minister erroneously based his decision on the wrong facts. His
decision is premised on two fundamental factual errors: First, the Minister said that he
decided to discharge Mr Becker because he had met with civil society and had ‘given
the impression that [he was] acting on behalf of the NNR Board, with no authority to
do so’. However, Mr Becker explains that when he met with representatives of civil
society (in discharging his duties as director) he did not do so as a representative of
the Board, and he gave no such impression. He explains that he met with civil society
as their representative ‘on’ the Board. Mr Becker’s version is corroborated by affidavits
of two persons who attended the meeting. Neither Mr Becker’s version , nor its

14

corroboration in the supporting affidavits is denied by the Minister in his affidavit. The
Minister could not deny Mr Becker’s version, as he did not attend the meeting and has
no personal knowledge of what was discussed. The Minister’s second factual error
was his belief, expressed in the Newz Room Africa interview , that Mr Becker ‘le d a
march’ against a decision of the Board. Mr Becker denies th is. His denial is not
addressed by the Minister. The Minister produces no evidence to explain his belief.

[34] Seventh, the Minister unfairly made up his mind before Mr Becker made
representations concerning his discharge. The process, therefore, was procedurally
unfair and irrational. On 3 February 2022, before the representations were made or
were due, the Minister was interviewed on Newz Room Africa. He said this:
‘But it is simple, if you are an anti-nuclear activist. You can’t sit on the Board of nuclear, and
get all the details of the plans and go and plan a program against that entity. It is not allowed.’
Thus, the representations process was a sham.

[35] In his answering affidavit, the Minister admits making this comment at the time
he did, but denies that he prejudged Mr Becker’s case. He says that he was merely
expressing a ‘prima facie view’. He says that he could have been convinced otherwise
by Mr Becker’s representations. But those contentions are not borne out by the facts.
What the Minister said is not consistent with the expression of a preliminary view. He
was expressing a firm view that Mr Becker was disqualified from being a director on
the Board: ‘. . . it is simple … It is not allowed’. The irresistible inference is that the
Minister ignored Mr Becker’s representations.

[36] After Mr Becker had been discharged as a director, the Minister made further
public comments , which confirm that he had a fixed view with a predetermined
outcome. The Minister said: ‘If you resist nuclear and you [are] a Board member, I fire

outcome. The Minister said: ‘If you resist nuclear and you [are] a Board member, I fire
you, simple. You can’t be in a Board of something you’re not advocating for ’. The
Minister does not deny making these statements. He attempts to justify them by
contending that he ‘did not intend to suggest that members of the Board would be
removed for holding personal views on the desirability of nuclear which were different
from those of the Government’. But this is clearly not so: his statement is unequivocal
that one who is critical about the desirability of nuclear energy will be ‘fire[d]’.

15

[37] The appeals of the Minister and that of the Regulator, therefore, fall to be
dismissed with costs, including those of two counsel. This brings us to Mr Becker’s
cross-appeal against the failure of the high court to set aside the Minister’s decision
prospectively from now. What Mr Becker seeks is for the high court’s declaration that
the Minister’s decision to discharge him was unlawful, unconstitutional and invalid to
operate from the date of this order so that he could serve the balance of his term for
which he had been appointed as a director of the Board.

[38] In his letter of appointment, the Minister appointed Mr Becker for a three-year
term commencing in June 2021. In terms of s 8(12)(b) ‘[a] director . . . holds office for
a period specified in the letter of appointment but not exceeding three years and may
be reappointed upon expiry of that term of office’. Mr Becker was nominated by
communities which may be affected by nuclear activities, and he was appointed by the
Minister as a non-executive director on the Board of the Regulator to represent those
communities.

[39] The relief sought by Mr Becker in his cross -appeal is , in our view , legally
unsustainable. Mr Becker’s three -year term on the Board expired on 5 June 2024. It
is not known whether those communities which may be affected by nuclear activities
would want Mr Becker to again represent them on the Board, or whether they would
prefer to nominate someone else. There was no evidence placed before the high court
that the communities which may be affected by nuclear activities would want Mr
Becker to represent them on the Board of the Regulator further and that he would be
the person who would carry their nomination. Mr Becker’s cross-appeal, therefore,
must also fail. The Biowatch rule applies here. Each party should bear its own costs
in respect of Mr Becker’s appeal.9

[40] In the result, the following order is made:
1. The appeal of the Minister of Mineral Resources and Energy

1. The appeal of the Minister of Mineral Resources and Energy
(Case no 1199/2023) is dismissed with costs, including those of two counsel where
employed.

9 Nu Africa Duty Free Shops (Pty) Ltd v Minister of Finance and Others [2023] ZACC 31; 2023 (12)
BCLR 1419 (CC); 2024 (1) SA 567 (CC) paras 149 and 279-284.

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2. The appeal of the National Nuclear Regulator and of the Chairperson of the
Board of Directors of the National Nuclear Regulator (Case no 966/2023) is dismissed
with costs, including those of two counsel where employed.
3. The cross-appeal of Mr Peter Becker (Case no 1013/2023) is dismissed with
each party to pay their own costs.



_____________ _
P A MEYER
JUDGE OF APPEAL





P TLALETSI
ACTING JUDGE OF APPEAL

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Appearances

For the Minister of Mineral Resources: D Borgstrom SC with C Cawood
Instructed by: State Attorney, Cape Town.
State Attorney, Bloemfontein.

For the National Nuclear Regulator and the
Chairperson of the Board of Directors of the
National Nuclear Regulator: I Jamie SC with L Stansfield
Instructed by: State Attorney, Cape Town
State Attorney, Bloemfontein.

For Mr Peter Becker: G.M Budlender SC with M.N de Beer
Instructed by: Macroberts Attorneys Inc., Pretoria
Claude Reid Attorneys, Bloemfontein.