Nuclear Energy Act [No. 46 of 1999]
REPUBLIC OF SOUTH A
GOVERNMENT GAZETTE
STAATSKOERANT
VAN DIE REPUBLIEK VAN SUID-AFRIKA
Registered at the Post Ofice as a Newspaper As ‘n Nuusblad by die Poskantoor Geregistreer
CAPE TOWN, 23 DECEMBER 1999 VOL. 414 No. 20759
KAAPSTAD, 23 DESEIMBER 1999
OFFICE OF THE PRESIDENCY
No. 1536. 23 December 1999
It is hereby notified that the President has assented to the following Act which is hereby published for general inforrnation:—
No. 46 of 1999: Nuclear Energy Act, 1999,
KANTOOR VAN DIE PRESIDENSIE
No. 1536. 23 Desember 1999
Hierby word bekend gemaak dat die President sy goed- keunng geheg het aan d i e onderstaande Wet wat hierby ter algemene inligting gepub[iseer word:—
No. 46 van 1999: Wet op Kernenergie, 1999.
GENERAL EXPI.AN.4TOR}’ NOTE:
[ 1 Words in bo]d type in square brackets indicale omissions fr~>rn existing enactments,
Words underlined with a solid line indicate insertions in existing enactments.
(English text signed by the Deputy Presidet~t. ) (Assented to 20 Decelnber 1999. )
ACT To provide for the establishment of the South African Nuclear Energy Corporation Limited, a public company wholly owned by the State (the “Corporation”), to define the Corporation’s functions and powers and its financial and operational accountability, and provide for its governance and management by a board of directors and a chief executive officer; to provide for responsibilities for the implementation and application of the Safeguards Agreement and any additional protocols entered into by the Republic and the International Atomic Energy Agency in support of the Nuclear Non-Proliferation Treaty acceded to by the Republic; to regulate the acquisition and possession of nuclear fuel, certain nuclear and related material and certain related equipment, as well as the importation and exportation of, and certain other acts and activities relating to, that fuel, material and equipment in order to comply with the international obligations of the Republic; to prescribe measures regarding the discarding of radioactive waste and the storage of irradiated nuclear fuel; and to provide for incidental matters.
BE IT ENACTED by the Parliament of the Republic of South Africa. asfollows:— CONTENTS
Sectioi2s
CH.4PTER I
1-2 INTRODUCTORY PROVISIONS
CHAPTER II
~-~z THE SOUTH AFRICAN NUCLEAR ENERGY CORPORATION, LIMITED
CHAPTER III
33-43 NUCLEAR NoN-PROLIFERATION
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CHAPTER IV
44-50 MINIsTER’ s RESPONSIBILITIES REGARDING SOURCE MATERIAL, SPECIAL NUCLEAR MATERIAL, RESTRICTED MATERIAL, RADIO- ACTIVE WASTE AND IRRADIATED FUEL
.Act N(). 46.1999 X1 TCI,E4R ENI;KG)”,ACT. 199Q
CH.4PTER v
5 ] -6] GENERAL PROVISIONS
CHAPTER I
INTRODUCTORY PROVISIONS
Definitio]ls
1. In this Act, unless the context indicates otherwise— (i)
(ii)
(iii)
(iv) (v)
(vi) (vii)
(viii)
(ix)
(x)
(xi) (xii)
(xiii)
(xi~)
(xv) (xvi)
(xvii)
(xviii)
(xix)
“Atomic Energy Corporation.’ means the Atomic Ener&y Corporation, Ltd contemplated in section 4(1) of the Nuclear Energy Act, 1993 (Act No. 131 of 1993); “Board” means the Board of Directors of the Corporation as provided for in section 16: “chief executive officer” means the chief executive officer of the Corporation contemplated in section 22; “Companies Act” means the Companies Act, 1973 (Act No. 61 of 1973); “Corporation” means the South African Nuclear Energy Corporation, Limited, established by section 3; “Department” means the Department of Minerals and Energy; “director” means a member of the Board; “Director-General” means the Director-General of the Department of Minerals and Energy; “disposed of” used in the context of safeguards means sell, exchange, donate, distribute, lend or in any other manner transfer and “disposal of” has a corresponding meaning; “enrich” means to increase the ratio of an isotopic consti~ent of an element to the remaining isotopic constituents of that element relative to the naturally occurring ratio, and “enrichment” has a corresponding meaning; “inspector” means a person appointed in terms of section 53(1); “institutional obligations” means the obligations of the Republic in terms of international agreements or in the national or public interest concerning matters arising from or otherwise involving the use of nuclear energy, such as— (a)
(b) (c)
(d) (e)
(f)
the decommissioning and decontamination of past strategic nuclear facilities; the management of nuclear waste disposal on a national basis; the application of radiation technology for medical or scientific purposes; the operation of the SAFARI nuclear reactor; the operation of the Atomic Energy Corporation .s site at Pelindaba and accompanying services; the implemen~ation and execution of the safeguards function with the lntemational Atomic Energy Agency. the Nuclear Non-Proliferation Treaty, the African Co-operative Agreement, the Treaty of Pelindaba or any other treaty. agreement or protocol.
“invention” means an invention as defined in section 2 of the Pa(ents Act. 1978, (Act No. 57 of 1978); “ionizing radiation’. means electromagnetic or corpuscular emission emitted from radioactive material and capable of producing ions. directly or indirectly, while passin& through matter; “Minister” means tie Minister of Minerals and Energy; “nuclear energy’. means all the energy released by a nuclear fission or nuclear fusion process; “nuclew fuel.. means any material capable of undergoing a nuclear fission or nuclear fusion process on its own or in combination with some other material and which is produced in a nuclear fuel assembly or other configuration; “nuclear installation’. means a nuclear installation as defined in section 1 of the National Nuclear Regulator Act, 1999; “nuclear material.. means source material and special nuclear material;
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(xx) “Nuclear Non-Proliferation Treaty’. means the Treaty on the Nell-Prolifera- tion of N’uciear Weapons acceded to by the Republic on 10 July 1991:
(xxi) ‘nuclear-related equipment and ma(eria]. ” means equipment and material declared under section 2(fl to be nuclear-related equipment and ma!erjal;
(xxii) “plant” includes any machinery. equipment or de\ice, whether attached to the 5 ~ruund or not;
(xxiii) “prescribed’. means prescribed by regulation: (xxiv} “previous Act means the Nuclear Ener&} Act, 19?3 (Act No. 131 of 1993); (xx\’) “process’., when used as a \’erb in relation to source material, special nuclear
material and restricted material. means to extrac( or recover such a material or 10 to concentrate. refine or convert it in any manner without enriching it. and “processing.. has a corresponding meaning:
(xxvi) “radioactive material” means any substance consisting of, or containing, any radioactive nuclide, whether natural or artificial;
(xxvii) “radioactive nuclide’ means an unstable atomic nucleus which decays 15 spontaneously with the accompanying emission of ionizing radiation;
(xx\iii) “radioactive waste.. means any radioactive material destined to be disposed of as waste material:
(xxix) ‘regulation’. means any regulation in force under section 54; (xxx) “reprocess.. means to extract or separate. from source material or special 20
nuclear material that has been subjected to radiation, the constituents that have undergone transmutations as a result of the radiation, or the constituents that have not undergone those transmutations and are re-usable;
(xxxi) “restricted act or activity’. means any of the acts or activities mentjoned in— (a) paragraphs (c) to (u) of section 34(1); and 25 (b) section 35(1);
(xxxii) “restricted material.’ means beryllium and zirconium and any other substance declared under section 2(a) to be restricted material;
(xxXiii) “restricted matter.. means any or all of tbe following, namely— (u) source material; 30 (b) special nuclear material; (c) restricted material; (d) uranium hexafluoride (UF6); (e) nuclear fuel; and ~) nuclear-related equipment and material;
(xXxiv) 35
“SAFARI nuclear reactor” means the South African Fundamental Atomic Research Installation located at the Atomic Energy Corporation’s Pelindaba site, in North West Province;
(xxx\’) “ Safe&uards Agreement.. means the comprehensive safeguards agreement entered into on 16 September 1991 between the Republic and the International 40 Atomic Energy Agency with regard to the application of safeguards for the purposes of the hluclear Non-Proliferation Treaty pursuant to the Republic’s accession to that Treaty on 10 July 1991;
(xxxvi) “site.. means a site as defined in section 1 of the National Nuclear Regulator Act, 1999, for which a nuclear authorisation as defined in that Act is required; 45
(xxXvii) “source material.. means any material declared under section 2(b) to be source material;
(XXXviii) “special nuclear material’. means any material declared under section 2(c) to be special nuclear material:
(xXxix) “specified date.’ means the date referred to in section 61; 50 (xlj “storage facility.. means a facility for the acceptance, handling and treatment
of irradiated fuel and the storage thereofi (xIi) “subsidiary company” means a “subsldi~ company.’ contemplated in
Section 1 of the companies Act, 1973 (Act No. 6] of 1973), and which has been established by the Corporation. either alone or in association with any 55 odrer person;
(xiii) “this Act” includes any regulations; and (xliii) “waste dispos~ facility” mems a facility for the acceptance, handling,
storage and treatment of radioactive waste and irradiated fuel and the disposal of radioactive waste, 60
. . -$, ... G()\’ER\jl EXT G.-\ ZFTTL. 23 DECE\l BER IQ9Y
icl so. 46. 199Y S[’(-I.F AR EXERGY .! CT. 1 Q09
Declarations, determinations and exemptions relating to material, substances, equipment and premises. etc
2. The Minister. bv natice in the Ga:crfe, ma\l- (a) declare an; substance with a de,~ree o; purit} as specified in the notice, to be
(b)
(c)
(d)
(g)
restricted material for the pu~o~es of this A-et: . 5 declare an> substance containing uranium or thorium with concentration and mass limits higher than those specified in the notice, to be source material for the purposes of this Act; declare any of the following with concentration and mass levels higher than those specified in the notice. to be special nuclear material for the purposes of 10 this Act, namely— (i) plutonium-239:
(ii) uranium-233: (iii) uranium enriched in its 235 or 233 isotope; (]\) transuranium elements; or 15 (v) any composition of any of the materials referred to in subparagraphs (i),
(ii), (iii) and (iv), or any composition of those materials and any other substance or substances;
declare any facility, installation, plant or structure designed or adapted for or involved with any process within the nuclear fuel cycle involving radioactive 20 material, to be a nuclear installation for the purposes of this Act; exempt any radioactive material from the provisions of this Act; for the purposes of this Act, declare equipment and material specially designed or prepared for the processing, use or production of nuclear material, to be nuclear-related equipment and material; 25 determine the levels of specific activity and total activity of radioactive material below which the provisions of this Act do not apply.
CHAPTER 11
THE SOUTH AFRICAN NUCLEAR ENERGY COWORATION. LIMITED
Establishment of South African Nuclear Energy Corporation, Limited 30
3. (l) There is hereby established a nuclear energy corporation for the Republic which will be a juristic person.
(2) Despite the provisions of the Companies Act or any other law, that corporation, with effect from the specified date, will be a public company incorporated in accordance with section 4, 35
(3) The main objects of that corporation and, accordingly, those of that company. are to perform the functions mentioned in section 13.
Incorporation of South African Nuclear Energy Corporation, Limited
4. (1) The Minister must t~e all the steps that are necessary for the formation and incorporation of that co~oration as a pub]ic conlpany with a share capital within the 40 meaning of the Companies Act, subject to section 3, ~his section and section 5.
(~) Despite the provisions of the Companies Act. the State will be the only member and shareholder of that company upon its incorporation.
(~) Despite the provisions of the Companies Act— (a) the Minister, who represents the State, will sign the memorandum of 45
association, aflicles of association and al] other documents necessary in connection Uith the formation and lnco~oration of the company;
(b) tie Registrar of Companies must register the memorandum of association and ~icles of association as signed by the Minister, and incorporate the company as a public comp~y under the name “The South African Nuclear Energy 50 Corporation Limited., with the State as its only member and shareholder, and issue to the company a certificate to commence business with effect from the date of the company.s incorporation.
(4) (a) The State’s rights as member and shareholder of the Corporation are to be exercised by the hfinister. 55
( i~ ) The relationship between the Corporation and the h4inister representing the State as the only member and shareholder. may be closer defined in an agreement entered into by the Corporation and the Minister for that purpose. subject to this Act.
Corporation’s memorandum and articles of association
5. ( 1 ) The memorandum of association and articles of association of the Corporation 5 must be so drawn up that the contents thereof are consistent with this Act.
(2) Despite the Companies Act, an amendment of the memorandum of association or articles of association affecting any arrangement made by any provision of this Act will not be operative or have any legal force unless and until the relevant provision of this Act has been amended accordingly and that amendment has come into effect. 10
Application of Companies Act to Corporation
6. (1) The provisions of the Companies Act, which are not in conflict with this Act. apply to the Corporation, subject to subsection (2).
(2) A provision of the Companies Act will not apply to the Corporation in the following circumstances, namely, where—
(a) because of any special or contrary arran&ement made by this A,ct, such a pro\ision is clearly inappropriate or incapable of being applied; or
(b) the Minister of Trade and Industry has issued a declaration under section 7(3) with regard to the provision.
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Certiin provisions of Companies Act may be declared not applicable to 20 Corporation
7.( 1) The Minister, after consultation with the Corporation, may from time to time, as and when considered necess~, request the Minister of Trade and Industry to declare any particular provision of the Companies Act, not to be applicable to the Corporation.
(2) The request must be fully motivated, and the necessary particulars about the 25 request, together with the motivation therefor, must be made hewn by the Registrar of Companies by notice in the Gazerte. In that notice that Registrar must also invite interested persons who may have any objections to such a declaration, to submit their objections and representations to a person named in the notice, or. if sent by post, to place that person in possession of their objections and representations, not later than 21 30 days after the date of the notice.
(3) After having considered the objections and representations received within the 21 day period, the Minister of Trade and Industry may, by notice in the Gazette, declare the whole or any part of any pro\ision of the Companies Act about which the abovernentioned request was made, not to be applicable to the Corporation with effect 35 from a date stated in that notice. if satisfied on reasonable grounds that the non-application of that provision to the Corporation—
(a) will contribute to its efficiency or will reduce the Corporation’s operating costs; and
(l)) will not reduce or limit the Corporation’s accountability as a public institution 40 or detract froln the requirements of transparency as regards its functioning and operations; and
(c) will not be prejudicial to the rights. interests or claims of the Corporation’s creditors or employees or to the rights or interests of any other interested parties. 45
Corporation successor to property, assets and liabilities of Atomic Energy Corporation
8. (1) On the specified date, the Coloration will become entitled to and have claim to any money which, immediately before that date. stood to the credit of the Atomic Energy Corporation. 50
(2) On the specified date, the following will pass to and vest in the Corporation: (a) All immovable propefly registered in the name of the Atomic Energy
Corporation and consisting of land. and any servitudes or other real rights with regard to land;
.ict N(I. 46.1999 XI’CI.I, AK1;XERG}”.4CT. ldv~)
(13)
(c)
(d)
land and an! ser~itudeso rotherr ealrightsw ithregardt oland( includingan> right to use land tempor~ily) acquired by the Atomic Energy Corporation in terms of the pre\ious Act for the purposes of or in connection with the functions, business or operations of the Atomic Energy Corporation: any other assets of which the Atomic Energy Corporation is the owner, 5 immediately before the specified date. for the pu~oses of or in terms of the previous Act: and any liabilities which were incurred by the Aiomic Energy Corporation in terms of the previous Act or pursuant to its operations and activities thereunder, which are still outstanding immediately before the specified date. 10
(3) The Registrar of Deeds concerned must m~e the entries and endorsements that may be necessary to give effect to subsection (2) in or on any relevant register, title deed or any other document that is filed or on record in the Deeds Registry or has been submitted to that Registrar, and no office fees or other money will be payable with regard to such an entry or endorsement. 15
Transfer of shares by hlinister
9. (1) Despite any provisions of a law to the contrary, the Minister may transfer so much of the State’s shares in a subsidiary company contemplated in section 14(1)(a)(i) as the Cabinet approves to such transferees in such manner and on such terns and conditions as the Cabinet approves. 20
(2) The proceeds of any transfer in terms of subsec~on (1) may be used wholly or partially for such purpose as the Cabinet approves, but all proceeds not so used within the period determined by the Cabinet must be paid into the National Revenue Fund.
Sbte’s financial interest in Corporation
10. (1) In exchange for the nett value of the assets passing to and vesting in the 25 Corporation in terms of section 8, the State, by virtue of having been the sole shareholder in the Atomic Energy Corporation, will hold fully paid-up shares in the Corporation—
(a) for an amount equal to the nett value of the assets so invested in the Corporation; or 30
(b) for an amount equal to a percentage, specified in the agreement, of the nett value of the assets so invested, subject to subsection (2).
(2) (a) If the amount for which shares in the Corporation are to be held by the State in terms of subsection (l), is less than the nett value of the assets so passing to and vesting in the Corporation, the Corporation will be indebted to the State for an amount 35 equal to the difference between the nett value of those assets and the \’alue of the shares to be so held. The amount of that difference will be regarded and treated as a loan granted to the Corporation by the State.
(b) The terms and conditions of that loan must be set out in the agreement mentioned in subsection (1). In that agreement provision may be made that the Corporation issues 40 the State with debentures for the whole or any part of the amount of the loan.
(3) For the purposes of this section, any reference to the nett value of the assets invested in the Corporation. however expressed, must be understood to mean all the money mentioned in subsection (1 j of section 8 plus the value of all the movable. immovabIe and other propefiy passing to the Corporation in terms of subsection (2)(a), 4S (b) and (c) of that section. an amount representing the sum of all the liabilities passing to the Coworatlon in terms of subsection (2)(d) of that section.
(4) Where the \,alue of any assets consisting of immovable property is to be determined for the purposes of this section, reg~d must be had to the criteria mentioned in sections 12(1) and (5)(b), (c), (d), (e), ~) and (11) of the Expropriation Act. 1975 (Act 50 No. 63 of 1975).
Financial year
11. The Corporation’s financial year will be from I April in any year to 31 March in the following year, both days included. However, the first financial year will run from the specified date to 3 I March in the following year, both days included. 55
Judicial management and liquidation
12. Despite the pro~isions of any other law, the Corporation may not be placed under judicial management or in liquidation except if authorised by an Act of Pfirliament adopted specially for that purpose,
Main functions of Corporation 5
13. The main functions of the Corporation are— (a) to undertake and promote research and development in the field of nuclear
energy aud radiation sciences and technology and. subject [o the Safeguards Agreement, to make these generally available;
(b) to process source material, special nuclear material and restricted material and 10 to reprocess and enrich source material and nuclear material; and
(c) to co-operate with any person or institution in matters falling within these functions subject to the approval of the Minister.
Ancillary powers and functions of Corporation
14. (1) In connection with its main functions, the Corporation may— 15 (a) for the purpose of developing or in any manner exploiting any invention or
technological expertise, subject to the approval of the Minister granted with the agreement of the Minister of Finance— (i) establish a subsidiary company in terms of the Companies Act or in
association with any person so establish a company, or acquire an interest 20 in or control over a company;
(ii) purchase or otherwise acquire immovable property and encumber or dispose thereofi
(iii) purchase, erect, or cause to be erected, any buildings, installations, works or plants; 25
(b) establish and manage facilities for collecting and disseminating information regarding activities fall in& within the scope of the Corporation’s functions and powers;
(c) utilise or let buildings, works or plants for the benefit of the Corporation or such a subsidiary company; 30
(d) purchase, hire or otierwise acquire, or hold, movable property, and let, pledge, encumber or dispose of such property of which it is the owner:
(e) hire services or let its own services or make them otherwise available; (~) conclude agreements wlti producers for the production and delivery of any
quantities of source material that may be required from time to time by the 35 Corporation or any subsidiwy company of the Corporation:
(g) cede or assign to any person any or all of the rights or obligations of the Corporation in terms of any contract relating to the sale or supply of source material, subject to this Act;
(h) promote the prospection for and mining of source material and restricted 40 material;
(;) undertake, cause to be undertaken or promote the development of nuclear technology, nuclear-related technology and know-how, and nuclear research:
(~) manufacture or otherwise produce, acquire or possess uranium hexafluoride (UF6), or dispose thereof, subject to section 34; 45
(k) acquire, possess, utilise, dispose of or process source material, special nuclear material and restricted material, and enrich and reprocess source material and special nucle~ material subject to section 34;
(1) manufacture, acquire or possess nuciear fuel and dispose thereof subject to section 34; 50
(nz) import into or export from the Republic any source material. special nuclear material, restricted material and nuclear related equipment and material and technology, subject to section 34 or 35;
(n) store irradiated fuel and operate facilities for that purpose, subject to section 34; 55
(o) undertake the transportation of source material. special nuclear material, nuclear fuel, irradiated nuclear fuel. radioactive material and radioactive waste or cause it to be undertaken, subject to section 34;
(1~) make any arrangements that the Minister considers necessary for the stockpiling of strategic raw materials, materials and equipment; 60
(t/) miththeu rittenpe rnlissiono ftheMinister. sell orinany other manner make available to an} person. for use on such conditions approved by the Minister. an! patent. licence. concession. or right of manufacture or any other right conferring the power t~ use an>’ information. expertise. process or technology which has been de\eloped by the Corporation or a subsidiary company and which is the Corporation’s property;
(r) co-operate with anyeducationaI, sciel~tific orother institution or body mitha \’iew to such an institution or body pro\iding instruction to. or training of, persons required by the Corporation, and if considered necessary by the Corporation. provide financial or other assistance to such an institution or body in connection with the instruction or training of those persons;
(s) award a bursary or loan to any suitable person for study in any scientific or technical field relevant to the Co~oration’s activities;
(J) acquire patents. licences, concessions. rights of manufacture or other similar rights conferring the power to use any technology. process, expertise or information and use, exercise, develop or grant licences in respect of such ri&hts. concessions. technology. processes, expertise or information, or otherwise exploit it beneficially;
(L~) perform any other function or exercise any other power assigned or delegated b\/ the Minister in terms of section 55 of this Act.
(2) In o~der to create and utilise viable business opportunities in commerce and industry, the Corporation may—
(a) produce and otherwise acquire reports. computer software and other intellectual property and dispose thereof,
(b) manufacture and sell instruments. equipment and similar products; (c) process and sell minerals; (d) produce and process metals, chemicals and related products; (e) with the permission of the Minister, and subject to this Act—
(i) sell or otherwise commercially exploit those metals, chemicals and related products: and
(ii) for reward render to any person or institution any service falling within the ambit of the Corporation’s functions.
(3) The Corporation may, at the request or with the written permission of the Minister, undertake the development, transfer or exploitation of nuclear technology or nuclear- related technology on behalf of or in collaboration with any person, or institution in. or any government or administration of. any other country or territory.
(4) The Corporation may— (a) provide collateral security, including guarantees, to a financial institution as
defined in section 1 of the Financial Services Board Act, 1990 (Act No. 97 of 1990), in respect of a loan granted by the financial institution to any employee of the Corporation in order to acquire. improve or enlarge immovable property for the purposes of occupation:
(/>) build. cause to be built. buy or hire dwelling houses, flats or flat buildings for occupation by the Corporation’s employees, and may sell or let such houses or flats to its employees or, if no longer reasonably required, otherwise alienate or let, or otherwise deal with, such houses. flats or flat buildings:
(c) establish. erect. operate or cm on sports and recreational facilities, social clubs, social and health services. restaurants, hostels and study bursary schemes for the benefit of the Corporation’s employees, or any other similar undefla~ngs or schemes which in the opinion of the chief executive oficer may be beneficial to those employees.
Loans
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15. ( ] ) me Corporation, with the written permission of the Minister granted with the a&reement of the Minister of Finance. may raise loans to finance any expenditure that may be incurred by the Corporation during any financial year in connection with its 55 functions. business and operations in terms of this Act.
:ict X(). 4(>. 1999 Xl ‘CLE..IR EXERG?’ ,\Cl”. 19Y[~
(2) The permission ma~’ be granted subject to an} conditions determined by the Minister acting with the agreement of the Minister of Finance.
(3j The State. represented by the Minister acting with the agreement of the Minister of Finance. may guarantee any loan raised by the Corporation in terms of subsection ( 1),
(4) The Corporation with the agreement of the Minister so acting. may issue debentures in respect of a loan so raised.
Control and management of affairs of Corporation
16. (1) (a) The Corporation is governed and controlled, in accordance with this Act. b~ a Board of Directors.
(b) The Board must ensure that the goals of this Act are actively pursued. and must exercise general control over the performance of the Corporation’s functions.
(c) The Board represents the Corporation, and all acts performed by the Board or on its authority will be the acts of the Corporation.
(2) The Board consists of— (a) a chairperson. appointed by the Minister: (b) not fewer than five and not more than seven suitably qualified directors
appointed by the Minister; (c) the chief executive officer, who is a member of the Board by virtue of holding
the office; (d) an official of the Department, designated by the Minister; and (e) an official of the Department of Foreign Affairs designated by the Minister
after consultation with the Minister of Foreign Affairs. (3) A person will be disqualified from being appointed or designated or remaining a
director— if not a South African citizen who is permanently resident in the Republic; upon being declared insolx’ent or the person’s estate having been handed over to creditors; upon being convicted of an offence and sentenced to imprisonment without the option of a fine: upon having been nominated— (i) as a candidate in any election of members of Parliament or a provincial
legislature in terms of the Electoral Act. 1998 (Act No. 73 of 1998): (ii) to fill a vacant seat in Parliament or a provincial legislature; if appointed to any other public office under the State; if disqualified on any other grounds in terms of the Companies Act from being a director of a company,
(4) The Minister may. for a director appointed in terms of subsection (2)(d) and (e), appoint a suitably qualified alternate director to act in the place of that director during his or her absence.
(5) (a) The chairperson of the Board holds office for a period specified in the persons letter of appointment but not exceeding three years, and maybe reappointed upon expiry of that term of office.
(b) A director mentioned in subsection (2)(b) holds ofice for a period specified in the persons letter of appointment but not exceeding three years, and may be reappointed upon expiry of that term of office,
(6) (a) Any director mentioned in subsection (2)(a) or (b), will be appointed on the terms and conditions. including terms and conditions relating to the remuneration and allowances payable. as the Minister may determine with the agreement of the h4inister of Finance.
(b) Those terms and conditions must be stipulated in such a director’s letter of appointment.
(7) The Minister must designate one of the directors as deputy chairperson. (8) If any appointed or designated director dies or vacates office, the Minister, subject
to subsection (2), may appoint or desi&nate another person as director. The person so appointed or designated w,ill serve for the unexpired pofiion of the predecessor’s term of Ofice.
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(9) (a) Despite the preceding provisions of this section. the persons who, immediate]} before the specified date. served as members of the board of directors of the Atomic Energy Corporation in terms of the previous Act, will, as from the specified date until the day immediately before the Corporation’s Board, duly constituted in accordance with subsection (2). meets for the first time. act as the directors of the Corporation’s Board. 5
(b) The meetings of those acting directors will be held at the times and places determined by their chairperson.
Vacation of ofice
17. (1) The Minis~er may at any time discharge a director from offlce— (a) if the director repeatedly has failed to perform the duties of that office 10
efficiently: (b) if, because of any physical or mental illness or disability, the director has
become incapable of performing the functions of that office or performing them efficiently; or
(c) for misconduct. 15 (2) A director vacates office—
(u) upon becoming disqualified in terms of section 16(3); (b) when discharged in terms of subsection (1): (c) upon having been absent from three consecutive meetings of the Board
without the chairperson’s permission, unless the Board has condoned the 20 absence on good reasons advanced; and
(d) when the person’s resignation as a director takes effect.
Meetings of Board
18. (1) The first meeting of the first Board constituted under section 16, must be held at the time and place determined by the Minister. All meetings thereafter will be held at 25 the times and places that the Board determines.
(2) The chairperson may at any time call a special meeting of the Board to be held at a time and place as determined by the chairperson,
(3) All directors must be notified in writing of any meeting mentioned in subsection (1) or (2). 30
(4) A majority of the total number of directors forms a quorum at any meetin& of the Board.
(5) Subject to subsection (4), a decision agreed on by a majority of the directors present at a meeting of the Board is a decision of the Board, and in the event of an equality of votes on any matter. the chairperson of the relevant meeting. has a casting 35 vote in addition to a deliberative vote.
(6) A decision taken by the Board or an act performed under its authority, is not invalid merely because—
(a) there is a vacancy in the Board: or (b) any person not entitled to do so. sat as a director at the time that decision was 40
taken. if that decision was taken or that act was authorised by the required majority of directors present at the meeting who were entitled to sit as directors.
(7) In the case where the chairperson is absent or incapacitated or for any reason unable to act, or when the office of chairperson is vacant, the deputy chairperson will 45 Perfo~ the functions of the chairperson. However, if the deputy chairperson is also absent or incapacitated or for any reason unable to act, or where the office of the deputy chairperson is vacant, the remainin& directors must designate one from their number to act as chairperson,
(8) The Board must hold at least one meeting every three months. 50
Committew of Board
19. (1) The Bo=d may from time to time appoint one or more comminees to assist the Board in performing its functions.
(2) A committee may consist of one or more members, and may be a standing committee or an ad hoc co~ittee appointed for a ptiicular task and period only. A 55 co~ittee must at all times ha\,e at ]east one director as member.
(3) If such a committee has two or more members. the Board must designate one of them as the committees chairperson. who must be a director of the Board.
(4) The Corporation may pay a member of a committee who is not in the full-time service of the State or an employee of the Corporation, the remuneration and allowances determined by the h4inister with the agreement of the Minister of Finance, 5
(5) A member of a committee holds office at the Boards’ pleasure, (6) The Board may fill a vacancy in any committee.
Board and committees to keep minutes
20. ( 1 ) The Board and any committee must have minutes prepared and kept of the proceedings of their respective meetings and must have copies of the minutes circulated 10 to their respective members.
(2) The minutes so prepared. when confirmed at a next meeting and signed by the person who chairs that meetin&, will, in the absence of proof of error therein, be regarded and treated as a true and correct record of the proceedings and matters that they purport to minute and will be suficient evidence of those proceedings and matters at any 15 proceedings before a court of law or any tribunal or commission of inquiry.
Delegation and assignment of powers and functions by Board
21. (1) (u) Subject to subsections (2). (3) and (4). the Board, by special resolution, may delegate any of the powers and assign any of the functions or duties conferred or imposed on it by the operation of section 16(1) or conferred or imposed on it elsewhere 20 by this Act. to its chairperson. any other appointed director, the chief executive officer or any committee of the Board.
(b) However, the Board will not be divested of any power nor be relieved of any function or duty it may have delegated or assigned.
(2) The delegation or assignment— 25 (a) may be made on and subject to any conditions determined by the Board; (b) may, subject to subsection (4), be &iven together with the power to
subdelegate or further assign, on and subject to any conditions so determined (if any);
(c) must be communicated to the dele&atee or assignee in writing. The written 30 communication must contain full particulars of the matters being delegated or assigned and of the conditions determined under paragraph (a). if any. and, where the power of subdelegation or further assignment is conferred, must state that fact as well as any conditions determined under paragraph (b), if any.
(3) The Board, by special resolution. may at any time— 35 (a) amend or revoke a delegation or assignment made under subsection (1); (b) withdraw any decision made by the delegatee or assignee with regard to a
delegated or assigned matter. and decide the matter itself. However, a decision made by a delegatee or assignee may not be withdrawn where it confers a right or entitlement on any third party. 40
(4) The Minister, may by notice in the Gazerte. from time to time— (a) prohibit the delegation by the Board of any particular power or its assignment
of any particular function or duty. whether generally or in the circumstances specified in the notice;
(b) limit the circumstances in which any particular power, function or duty of the 45 Board may be delegated or assigned (as the case may be):
(c) prescribe conditions for the delegation of any particular pov)er or assignment of any particular function or duty;
(d) in relation to any power, function or duty of the Board specified in the notice, prohibit subdelegation or futiher assignment (as the case may be), in the event 50 of the Bo~d’s delegation of that power or assignment of that function or duty.
Chief executi~ e officer
22. (l) Thehlinister must after c()nsultati()n witlltheb oardappointa suitableperson as chief executive officer of the Corporation.
(2) .A person will be disqualified from being appointed or remaining a chief executive officer if subject to any of the disqualifications mentioned in paragraphs (a) to (H of 5 section 16(3).
(3) The chief executi\e oticer holds office for a period specified in the letter of appointment but not exceedin~ three years. and may be reappointed upon expiry of that term of office.
(4) The Minister may at any time remove the chief executive officer from office— 10 (a) if the chief executi\e officer repeatedly has failed to perform the duties of
office efficiently; (b) if, because of any physical or mental illness or disability, the chief executive
officer has become incapable of performing the functions of that office or performing them efficiently; or 15
(c) for misconduct. (5) (a) The person who, immediately before the specified date was the chief executive
officer of the Atomic Energy Corporation by virtue of appointment in that office under section 11 of the previous Act, will from the specified date until the date on which the appointment of the Corporation’s first chief executive officer under subsection (1) of this 20 section t&es effect, act as, and perform the functions imposed by or in terms of this Act on, the Corporation’s chief executive officer.
(b) A person so acting is not precluded from being appointed as the Corporation’s chief executi\ze officer under this section.
General management of Corporation 25
23. ( 1 ) The Corporation’s day to day business and operations will be under the general management of the chief executive officer, subject to the general or specific directions and instructions, if any, that the Board may issue from time to time.
(2) The chief executive officer must— (u) ensure that the functions of the Corporation in terms of this Act are complied 30
with: (b) report to the Board on the proper performance and functioning of the
Corporation; (c) compile a report on the activities of the Corporation for each financial year
and submit the report to the Board for approval; 35 (d) each financial year, after consulting the Board furnish the Minister with a plan
of action for the activities of the Corporation. (3) The chief executive officer is the accounting officer of the Board charged with the
responsibility of accountin& for all money received. payments made and assets of the Corporation. 40
(4) The chief executive officer must exercise all the powers and perform all the duties conferred or imposed on the accounting officer by—
((/) this Act, the Reporting by Public Entities Act, 1992 (Act No. 93 of 1992), or any other law:
(b) the Board. 45 (5) (u) M’henever, due to absence or for any other reason. the chief executive officer
is tempor~ily unable to perform the functions of that office, or when that office is Yacant, the Bo~d may designate an employee of the Corporation to act as chief executive officer until the incumbent of that Ofice resumes the functions of chief executive officer. or, as the case may be, the vacancy is filled by the Minister through the so appointment of another person as chief executive officer under section 22.
(c) W’bile so acting, the designated employee will be competent to exercise and perfo~ ~ the powers, functions and duties of the chief executive officer in terms of this Act.
Delegations and assignments by chief executive officer 55
24. (1) The chief executive officer may delegate any of the powers, and assign any
of Ihc functiol~.~ or dllties atluched {o [ha[ ofice. to an!. employee of the Corpora- tion.
(~) section 21(1 )(b). (2)(a) and (c). (3) and (4) will apply. reading in the chan&es necesstiry in the con[ext. to any delegation or assignment in terms of this section.
Sta~ of Corporation 5
25. (1) Subject to the general or speciaI directions of the Board, if any, the chief executive oficer may appoint the staff for the Corporation that may be necessary to perform the work arising from or connected with the Corporation’s functions. business and operations in tem~s of this Act.
(z) (a) The terms and conditions of service of the Corporation’s staff. and their 10 remuneration, allowances, subsidies and other service benefits will be as determined by the Board.
(b) That remuneration and those allowances, subsidies and other benefits must be determined in accordance with a system approved by the Minister with the agreement of the Minister of Finance. 15
(3) (a) The persons who. immediately before the specified date, were employees of the Atomic Energy Corporation appointed in terms of section 13(1) of the previous Act, or deemed by section 13(2) of that Act to have been so appointed, will from the specified date be deemed to be staff members of the Corporation who have been appointed in terms of subsection (1) of this section. 20
(b) The terms and conditions of service, salary or pay, allowances, subsidies and service benefits that were applicable to those employees immediately before the specified date, will, with effect from the specified date, continue to apply until redetermined by the Board under subsection (2).
(c) The terms and conditions of service, salary or pay, allowances, subsidies and 25 service benefits so redetermined, may not be less than those applicable before the redetermination.
(d) Those employees’ respective periods of pensionable service with the Atomic Energy Corporation and (where applicable) with its predecessor in terms of any law will be regarded and treated as pensionable service for the purposes of membership of any 30 pension fund or scheme of which they are or may become members after the specified date.
(e) The leave which has been accumulated by each of those employees while in the service of the Atomic Energy Corporation, will be regarded and treated as if it were leave accumulated by such art employee in the service of the Corporation. 35
(4) Subject to subsection (5), the Corporation is deemed to be an associated institution for the purposes of the Associated institutions Pension Fund Act, 1963 (Act No. 41 of 1963).
(5) The Corporation, with the approval of the Minister granted with the agreement of the Minister of Finance, may establish, and manage and administer, any pension Or 40 Provident fund or medical scheme for the benefit of its employees or have such a scheme or fund managed and administered by any other body or person.
Finances of Corporation
26. ( 1 ) The Corporation \~ill be funded and provided with capital from— (u) the capital invested in or lent to the Corporation as contemplated in section 10; 45 (h) money appropriated by Parliament for that purpose: ~~~ income derived from the sale or other commercial exploitation of its products,
technology, services or expertise in terms of this Act; (d) loans rtised bv the cOrpOratiOrr Irt terrnS of SeCtiOn 15; (~’) tie proceeds ~f any sde of assets authorised in terms of this Act; 50 (f) ~ncome or interest earned on the Corporation’s cash balances or on money
m\ ’ested by it; and (g) moneY received by way of granL contribution, donation or inheritance from
any source inside or outside the Republic. However, money from abroad may be received on]Y with tie Minister’s approval. 55
(2) hfoney hat in terms of subsection (1) are the funds of the Corporation, will be utiiised [0 Illeet the expendi~re incurred by the Corporation in connection with its functioning, business and operations in terms of this Act.
(3) (~) Those money may be so utilised only as provided for in a statement of the
Corporation’s estimated income and expenditure con~ernpla[ed in subsection (4). that has been approved by the Minister.
(b) Money recei\’ed b) way of grant, contribution, donation or inheritance in terms of subsection (1)(g), must be utilised in accordance with the conditions (if any) imposed by the grantor. contributor. donor or testator concerned. 5
(4) (a) The Board must in each financial year. at a time determined by the Minister. submit to the Minister for appro\,al a statement of the Corporation’s estimated income and expenditure for the next financial year. Howe~er, the Board may at any time during the course of a financial year concerned, submit a supplementary statement of estimated income and expenditure of the Corporation for that financial year, to the Minister for 10 approval.
(b) The Minister may grant the approval of the statement referred to in subsection (4)(a). with the agreement of the Minister of Finance.
(c) The Corporation may not incur any expenditure in excess of the total amount approved under paragraph (b). 15
(5) The Board may es~ablish a reserve fund for any purpose that is connected with the Corporation’s functions under this Act and has been approved by the Minister, and may allocate to the reserve fund the money that may be made available for that purpose in the statement of estimated income and expenditure (including any supplementary state- ment) approved under subsection (4)(b). 20
(6) (a) The chief executi\]e officer, subject to the conditions set by the Board, must open an account in the name of the Corporation with an institution registered as a bank in terms of the Banks Act, 1990 (Act No. 94 of 1990), and deposit therein all money contemplated in section (1).
(b) The money of the Corporation that are not required for immediate use or as a 25 reasonable working balance, may be invested with the Corporation for Public Deposits established by section 2 of the Corporation for Public Deposits Act, 1984 (Act No. 46 of 1984).
Accounting and auditing
27. The Corporation is deemed to be a listed entity as defined in section 1 of the 30 Reporting by Public Entities Act, 1992 (Act No. 93 of 1992).
Rights to discoveries, inventions and improvements made by Corporation’s employees and certain other persons
2S. (1) Subject to the provisions of subsections (4) and (5), the rights in all discoveries, inventions and improvements made by employees of the Corporation in the 35 course of their work as its employees, will vest in the Corporation which, with the Ministers permission, may make any such discovery, invention or improvement available for use in the public interest, subject to any conditions and the payment of any fees and royalties that may be dete~ined by the Corporation and approved by the Minister. 40
(2) The Corporation may. for such a discovery, invention or improvement. pay out of its funds to the emp]oyee concerned any bonus. rew~d or other financial benefit that the Board may determine.
(S) (a) The chief executive officer, on the instruction of the Board, may apply on behalf of the Coloration for a patent in terms of the patents Act, 1978 (Act No. 57 of 45 1978), for any invention or improvement referred to in subsection ( 1).
(b) The chief executive officer may direct the registrar of patents to keep secret any such invention and the manner in which it is to be applied.
(4) The rights in respect of any discovery. invention or improvement made by employees of the Coloration in the course of any work done by them as in that capacity 50 on behalf of or for the benefit of another person or institution, will vest in the Corporation unless otherwise agreed between the Corporation and the person or institution concerned,
(s) The rights in respect of any disco\ery, invention or improvement made in the course of work or during a special investigation done or carried out by any other person 55 or institution on behalf of or for the benefit of the Corporation, will vest in the Corporation or in the other person or institution, or in the Corporation and the person or institution jointly, as ma~ be a&reed in writing by the parties beforehand, and the party or parties whom the rights in such an invention or improvement are vested. may apply for a patent for the invention or improvement. 60
.4 CI X().46. 199Y .K~lCLE;l R ENEKG}”.ACT. 19~9
Provisions with regard to security of Corporation’s installations. sites and premises, etc
29. ( 1 ) The installations, sites, premises and land belonging to or under the control of the Corporation. on which any of its business, operations and activities in terms of this Act are conducted or performed or any records in connection therewith are kept. stored or to be found, are restricted areas.
(2) ln view thereof, the Corporation, subject to subsection (3), may make any arrangements it considers reasonably necessary for the proper protection of—
(u) those installations, sites. premises and land (hereinafter called hi&h security areas);
(h) the persons employed or present at or in the high security areas; (c) all property of the Corporation. whether of a physical or intellectual nature, at
or in the high security areas; and (d) the records and information of the Corporation that are kept, stored or to be
found thereat or therein, irrespective of the manner in which or the medium on or by means of which the records and information are kept, stored or recorded.
(3) No person will be allowed to enter or be present in a high security area unless the person has consented to any search that maybe conducted in terms of subsection (4)(a).
(4) Any person authorised thereto in writing by the chief executive officer, may— (a)
(b)
(c)
search any person or vehicle about toenter or leave any high security area, and may open and inspect any container or parcel and inspect any object, device, article, item or thing (including any material or substance) which is in the possession of such a person or is on or in that vehicle: search any person present or any vehicle found in the high security area if there are reasonable grounds to suspect that any person or anything in the person’s possession or in or on the vehicle, constitutes a threat to or endangers the lives or physical integrity of persons or the physical safety of property; seize or attach any object, device, article, item or thing (including any material or substance) in the possession of a person mentioned in paragraph (a) or (b) or found on or in such a vehicle— (i)
(ii)
if such an object. device, article, item or thing belongs to the Corporation or is subject to its control and is not in the lawful possession of the person or lawfully being conveyed in or on the vehicle for the purpose of performing any function or work of the Corporation; or if, in the opinion of the authorised person, it constitutes a threat or danger
(d)
of the na~ure contemplated in p;agraph (b), or may be used by ~he person from whom it was taken or any other person for the purposes of a threat or danger of that nature;
arrest any person found in unlawful possession of restricted matter or anything else contemplated in paragraph (c)(ij, or any person mentioned in paragraph (b).
Exemption from duties and fees
30. The Coloration, but not its subsidi~ companies, is exempt from the payment of any dutv or fee which, were it not for the provisions of this section. would have been Payable’by it to the State in terms of any law, except the Customs and Excise Act, 1964 (Act No. 91 of 1964j, or the Value Added Tax Act, 1991 (Act No. 105 of 1991 j, in respect of ~ act or transaction to which the Coloration is a party, or any document connected with such an act or ~dnsaction.
Disclosure of confidential information concerning Corporation’s acti}’ities
31, (I j Subject to subsection (2), no information concerning any operation, transaction. project, work or activity of the Coloration in connection with restricted matter or my restricted act or activity which is not yet public knowled&e, may be
5
10
15
20
~~
30
35
40
45
50
published or made known or be transmitted or otherwise disclosed. except with the \\ritten permission of the chief executi\e officer ac[ing on the authorit! of the Board, by any-
(a) employee or former employee of the Corporation or of a subsidiary company: (b) an! person who is or was involved in the business. operations or activities of 5
the Corpol-ation or subsidiary company in the capaciry of agent, contractor or consultant or in any similar or related capacity, as well as the employee, partner or associate of such a person.
(2) Subsection [1) does not preclude the disclosure of information— (a) in so far as may be necessary for the exercise of any power or performance of 10
any function or duty of the Corporation in terms of this Act or for the performance of any work in connection therewith. or
(b) on the order of a competent court of law.
Minister may authorise performance of Corporation’s functions by other person or body in certain circumstances 15
32. (l) If, in any particular case. the Corporation should fail, in relation to any matter or matters. to perform any function imposed on the Corporation in terms of this Act in circumstances where, in law, it is under a duty to perform that function, the Minister, by notice in writing to the Board. may order the Corporation to perform the function concerned, which must be specified in the notice. 20
(2) The Bored and the chief executive officer must ensure that any lawful order issued under subsection (1) is complied with.
(3) If the Corporation should fail to comply with such an order, the Minister, in writing, may authorise any person or other body that is competent and has the necessary capacity for that purpose, to perform that function in relation to the particular matter or 25 matters (as the case may be).
(4) The Minister may recover from the Corporation the costs of having such a function performed by a person or body so authorised.
CHAPTER III
NUCLEAR NON-PROLIFEMTION 30
Minister’s responsibilities concerning Republic’s international obligations with regard to nuclear non-proliferation
33. (l) The Minister acts as the national authority of the Republic for the purposes of the implementation and application of the Safeguards Agreement and any additional protocols in order to timeously detect and identify nuclear material intended to be used 35 for peaceful nuclear acti\’ities and deter the diversion of such nuclear material to the manufacture of nuclear weapons or other nuclear explosive devices or for use in connection with any other purpose that is unknown.
(2) In order to fulfill the responsibilities referred to in subsection (1 )— (a) the Minister must liaise with the International Atomic Energy A&ency on an 40
ongoing basis as regards— (i) negotiations on subsidiary arrangements under the Safeguards Agree-
ment: (ii) the furnishing and updating of information regarding the design of
nuclear installations and sites; 45 (iii) the furnishing of repoms required by or in terms of the Safe&uards
Agreement and the subsidiary arrangements thereunder; (i~’) requests for exemption from or termination of safeguards relating to
nuclear materi~; (v) the provision of facilities and support to the inspectors of the 50
httemational Atomic Energy Agency; (vi) the selection of inspectors nominated in respect of the Republic by the
Intemational Atomic Energy Agency;
.\ct N(). 4(,. 19YY K[”CLE4R EXERG}” ACT. 1999
(vii) (\ ’iii)
(b) the (i’)
(ii)
(iii)
(iv) (v)
(vi)
(vii)
(viii)
(ix)
the accompaniment of that Agency.s inspectors during inspections: the handling of importation into. and exportation from. the Republic of equipment and samples:
Minis[er may issue instructions— concerning the measuring methods and systems with regard to nuclear 5 material: on the procedures for the handling of shipper-receiver differences in respect of nuclear material: requiring and otherwise relating to the undereating of periodic physical stocktaking of nuclear material; 10 on the operation of accounting systems in relation to any materials: re]atin& to the keeping of records and reporting on nuclear material; relating to the furnishing of information regarding the design. and changes to the desi&n of nuclear installations and sites; on the provision of information about the importation into, and 15 exponation from, the Republic of nuclear material and nuclear-related equipment and material; about applications for the exemption from or termination of require- ments or safeguards in relation to nuclear material; about the phvsical protection of nuclear material; 20
(c) the Minister m~y~ ‘ (i) have the arrangement and verification undertaken of the physical
inventory of any nuclear material in the Republic; (ii) have inspections and investigations undertaken in accordance with and
subject to sections 37, 38 and 39; 25 (iii) cause the measuring methods and systems employed by any person or
body with regard to nuclear material to be verified; (iv) have samples taken of and analysis undertaken of any product, article,
object or thing subject to section 38; (v) have independent measurements of nucIear material taken; 30
(d) the Minister may apply any measures he or she considers necessary for the containment and surveillance of nuclear material;
(c) the Minister must consult with the Souti African Council for the Non- Proliferation of Weapons of Mass Destruction, established by section 4 of the Non-Proliferation of Weapons of Mass Destruction Act, 1993 (Act No. 87 of 35 1993), on any matter affecting the proliferation of weapons of mass destruction.
(3) Any person in possession of. using, handling or processing nuclear material must—
(a) (b)
(c)
(d)
(c)
(f)
(g)
(/7)
(i)
(J)
keep the prescribed records; 40 submit the prescribed reports to the Minister at the times or intervals or on the occurrence of any event as prescribed; perform the prescribed measurements on nuclear material and maintain the prescribed measuring control pro&rammes; in the prescribed manner provide the Minister with information re&arding the 45 design of any nuclear installation and site concerned and all changes effected to the design thereofi periodically undertake the physical stocktaking of nuclear material in the manner and at the times as prescribed; in the prescribed manner give prior notice of the importation or exportation of 50 nuclear material and nuclear-related equipment and material; implement and maintain the prescribed physical protective measures in respect of nucleu material: . without delay repofi to the Minister any 10SS of nuclear material in excess of the prescribed limlts; 55 periodicdly, at the times and in the manner as prescribed, provide the Minister with schedules of pl~ned activities; allow the designated officials of the International Atomic Energy Agency and any inspectors appointed under section 53 to carry out, without hindrance, inspections at any nuclear installation or site with a view to monitoring 60 compliance with the provisions of this Chapter.
(4) (a) All information furnished or disclosed by any person in compliance or SUpposed compliance with this section. as well as all accompanying information
? (> re are reasonable grounds for believin~ that—
(a)
(b)
(c)
re~tricti matter, tile possession of which is unlawful in terms of section 34, is to be found on or in the land, premises, place or means of conveyaJlce for which the search warrant is required; or a restricted act or iactivity is being, has been or is likely to be performed or carried out thereat, thereon, therein or therefrom; or an offence in terms of swtion 56 based on the unlawful possession of restricted matter or the performance or c~ing out of any restricted act or xtivity witiout tht! Minister’s autiorisation, in terms of section 34 or 35, is being or has been committed at, on, in, from or by means of the laud, place, premises or means of conveyance concerned,
(3) The inspector applying for the warrant must indicate whether the search of any person will be or is likely to be necessary. No person may be searched unless it is expressly authorised in the warrant.
(4) The entry upon or entry onto or into the land, premises, place or metns of conveyance specified in a warrant issued under subsection (2) and, where autiorised by that warrant, the search of any person thereat, thereon or therein, must be conducted with strict regard to decency and order, including the individual’s—
(a) right to respt for and protection of personrd dignity; (b) right to freedom and security of person; and (c) rigtit to personal privacy.
(5) An inspector who, on the authority of a warrant issued under subsection (2). may enter upon or enter, and search, any land, premises, place or means of conveyance ,md, where applicable, search any person thereat, thereon or therein, may use the forct: that may be reasonably necessary 10 overcome any resistance to the entry and search,
(6) A warrant contemplated in section 38(3)(a) wiU be issued ordy if it appears to tie judge or magistrate from information on oath or *ation that there we reasonable grounds for betieving that—
(a) an offence contemplated in subsection (2)(c) has been cornrnitted; and
5
10
15
20
25
30
35
40
45
50
55
(/,) the sample to be taken from under the surface of the land concerned is like]} to afford or corroborate evidence relating to tha~ ofience.
(7) A warrant in terms of this section may be issued on any day and remains in force until the occurrence of an) of the following e\’ents (whichever occurs first):
(a) The warrant has been executed: or (b) it is cancelled by the judge or magistrate who issued it, or, if not available. by
any other judge. or by any other magistrate with like authority (as the case may be); or
(c) the expiry of three months from the day of its issue: or (d) the purpose for which the warrant was issued, no longer exists.
(8) A warrant issued in terms of this section maybe executed by day only, unless the person who has issued the warrant has authorised the execution thereof by night.
(9) An inspector executing a warrant in terms of this section, must immediately before commencing v’ith the execution thereof—
(a) furnish proof of identity to the person in control of the land, premises. place or means of conveyance to be entered upon or entered, if that person is present, and hand to that person a copy of the warrant, or, if that person is not present, affix a copy of the warrant to a prominent spot at, on or to the land, premises, Dlace or means of conveyance; and
5
0
5
(b) it the request of that per~on, furnish to that person particular regarding the 20 inspector’s authority to execute the warrant. For that purpose, production of the inspector’s certificate of appointment issued under subsection 53(2), may be demanded.
Disposal of patents for inventions with regard to nuclear energy, nuclear material and restricted matter 25
41. (1) Despite anything to the contrary in the Patents Act, 1978, or any other law, any person who, in terms of section 25 of that Act. lodges with the registrar of patents an application for a patent in respect of an invention with regard to the production or use of nuclear energy, or the production, processing or use of nuclear material or restricted matter, must— 30
(a) immediately notify tie Minister in writing of that application; and (b) furnish the Minister with a copy of the specification relating to the invention:
and (c) provide the Minister with any other information regarding the invention that
the Minister may require. 35 (2) The Minister must treat all information furnished or provided in terms of
subsection (1) as highly confidential, and it may not be disclosed or used except as provided in this section.
(3) The registrar of patents must— (a) allow any person authorised thereto in writing by the Minister. to inspect any 40
application for a patent mentioned in subsection ( 1 ) and any specification or other document accompanying or relevant to the application;
(b) postpone acceptance of the application for a period of three months as from the date on which it \vas submitted to the patents office. which period may be extended for a further three months at the written request of the Minister; 45
(c) at the written request of. and until otherwise directed by. the Minister, withhold acceptance or sealing of the application, keep its specification secret and notify the applicant to that effect.
(4) The communication of an invention to the Minister in terms of subsection (1) or to such an authorised person. or anything done by that person in connection with the 50 invention for the purposes of an inspection contemplated in subsection (3)(a). will not be regarded as publication or use of the invention that may prejudice the granting or validity of any patent for the invention.
(5) If satisfied on reasonable grounds. from all the available information relevant to the invention, that the granting of a patent for the invention— 55
(a) will be agtinst the interests of the security of the Republic, the Minister, who
48 No. 20759 GOVERNMENT GAZE~E, 23 DECEMBI?R 1999
Act No. M, 1999 NUCLEAR E~RGY Am, 1999
.)P
(b)
(c)
mugt act in consdtatilm with the Minister of Defence, must give the regi!;trar of patents written notice thereof and in the notice direct that registrar to re fise tie granting of the patent, and thereupon that registrar will— (i) refuse tp grant the patent;
(ii) in writing notify the applicant for the patent of the refusrd; and (iii) keep secret the specification and any other dwuments relating to the
invention, as we] 1 as the manner in which it is to be performed or app lid, or
will be contrary to the Republic’s obligations in terms of the Nu(:lear Non-Proliferation Tn:aty or the Safeguards Agreement, or in terms of any other agreement of that kind between the Republic (including its national agency) and any other state or any international or multi-national nut:lear agency or institution., the Minister must give the registrar of patents written notice thereof, artd in the notice— (i) direti that regiswar to refuse the granting of tie patent, whereupon that
registrar must act in accordance with subparagraphs (i), (ii) and (iii) of p a r a g r a p h ( a ) ; or
(ii) direct that the patent may otiy be granted on the condition that the claims in the specification of the invention must, with regard to the invention, contain tie disclaimer mentioned in the direction; or
will not have any of the consequences mentioned in paragraphs (a) ancl (b), the Minister (who must act in consultation with the ~nister of Defence with regard to tie consequence contemplated in paragraph (a)), must in w) iting inform the registrw of patents to that effect and withdraw any direction issued under subsection (3)(b) or (c).
(6) The Minister may not take any action in terms of subsection (5)(a) or (b) unlt~ss— (a) the ‘Minister, by written notice, has info~ed ‘tie applicant for a patent with
regard to the invention concerned, of the proposed action and given the applicant sufficient opportunity to show cau$e ,why the proposed action should not be taken, and to make wfitten or ord reptisentations in that, regard; and
(b) the Minister has duly considered the applicant’s response and &p&sen@tions (if any),
(7) Upon the withdrawal of a direction issued under subsection (3)(b) or (c) (ill this subsection called a suspending direction), or when a direction is issued under subsection (5)(b)(ii)—
(a)
(b)
any steps in connection with the application for a patent taken in terms of th~ Patents Act, 1978, before the date on wMch a suspending direction W* issuti, may be continued as if they had hot kn interrupted by the sti$pending direction; any period that has lapsed after that date but before the date of withdrawal of the suspending direction or the date on which the direction mentionti in subsection (S)(b)(ii) was issued, as the case may be, will not be takt~~ ‘ihto account in crdculating any period prescribed by or in tirrns of the Patent; Act, 1978. ,1
(8) A patent granted, contrary to the provisions of this section, with regard tb an invention merttiond in ‘subse{:tion (1), will have no legal’ force or effect wha~oe ver.
,’, AppUUtion, h dpproptiate cireums@ces, of ~titi M, ~ or W of Wtenti; Act 1W8, to Innntion contemplated in section 41 of this Act ,.
42. (1) fie provisions of section 41 of this Act do not pmvertt sections 36@) tlr (3), 79 and 80 of the Patents Act, 1978, from &ing applied in appropriate circumstances with regard to any inventi~, relating to the production or use of ticlear energy or the production, processing or use of nuclear material or ~stricwd matter, in respect of which application for a patent has &en made in terms of section 25 of fie Patents Act, 1978, nor, where applicable, with re[;ard to any patent @ted in respect of such an invention.
(2) For that purpose, section 36 of the Patents Act, 1978, is hereby amended-- (a) by the substitution for subsection (2) of the following subsection:
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.Ict so. 46.1999 \[’Cl.E,.\R I: YERG>’ ,L\CT. 19QY
‘.(2) If. where an application for a patent is made. it appears to the recistrar that the in\’ention in respect of which the application is made— ((1) (b)
mjght be used jn any Inanner contrary tO ]3W: Or where it relates to the production or use of nuclear energy or to the
(b)
production. processing or use of nuclear material or restricted matter as defined in section 1 of the Nuclear Energy Act. 1999, might be used for a PuTose or in a manner_ (i) that will be harmful to or endanger the security of the Republic: or
(ii) that is not permissible in terms of the Nuclear Non-Proliferation Treaty or the Safeguards Agreement or in terms of any other agreement of that kind between the Republic (including its national agency with regard to nuclear matters) and any other state or any international or multinational nuclear agency or institution.
the registrar may refuse the application unless the specification is amended by the addition of such disclaimer in respect of that invention, or such other reference to the illegality, harmfulness. endangerment or unlawfulness thereof, as the registrar may determine: Provided that, in the case of an invention mentioned in paragraph (b)(ii). the disclaimer shall be determined in consultation with the Minister of Minerals and -“ : and
by the addition of the following subsection:
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‘.(3) The re,sistrar shall not dispose of any application for a patent in respect of an invention mentioned in subsection (2)(b), unless he or she has informed I the Minister of Minerals and Energy thereof in writing with a view to enabling that Minister, if considered necessary, to take action in terms of section 41 of 25 the Nuclear Energy Act, 1999, or make representations or take appropriate steps for the purposes of subsection (2) of this section or section 79 of this Act. and has given that Minister sufficient opportunity to do so.”.
(3) For the purpose of applying section 79 of the Patents Act, 1978, to such an invention, that section is hereby amended—
(a) in subsection(1), by the addition of the following paragraph after the existing provisions (which become paragraph (a)): “(b) The proprietor of an invention relating to the production or use of nuclear
energy or the production, processing or use of nuclear material or restricted matter as defined in section 1 of the Nuclear Energy Act, 1999, shall, if called upon to do so by the h4inister of Minerals and Ener&y. assi&n the invention or the patent obtained or to be obtained for the invention, to the Minister of Minerals and Ener&y on behalf of the State— (i) if the interests of the security of the Republic so require, Howe\er.
such an assignment may be made only at the request of the h4inistcr of Defence:
(ii) if the commercial exploitation of the invention is not permissible in terms of the Nuclear Non-Proliferation Treaty or the Safeguards Agreement as defined in section 1 of the Nuclear Energy Act, 1999, or in terms of any other agreement of that kind bet\veen the Republic (including its national agency with regard to nuclear matters) and any other state or any international or multi-national nuclear agency or institution.”;
(b) in subsection (2). by the addition after the words “Minister of Defence” of the words .’or the Minister of Minerals and Energy (as the case may be)..;
(c) by the substitution for subsection (3) of the follow’in~ subsection:
(a)
(b)
- “(3) Where an invention has been so assigned— u the Minister of Defence may, in respect of an invention contemplated in }
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subsection (1 )(a), by notice in writing to the registrar direct ‘that the invention and the manner in which it is to be performed, shall be kept secret; the Minister of Minerals and Energy shall, in respect of an invention contemplated in paragraph (b)(i) or (ii) of subsection (1), by notice in
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ficl 50.46. 19YY NT~cLE,