- Transparency is the legal default under PAIA, and Eskom could not justify its refusal.
- Court dismisses Eskom’s commercial harm claims as speculative and baseless.
- Appeal dismissed with costs, and Eskom ordered to disclose its coal and diesel contracts.
South Africans are entitled to see how Eskom spends billions on coal and diesel, after the Supreme Court of Appeal ruled that the power utility failed to justify keeping its procurement contracts secret.
At the heart of the case was Eskom's refusal to disclose key agreements despite a formal request under the Promotion of Access to Information Act (PAIA).
The dispute began when AfriForum formally requested access to Eskom’s active coal and diesel contracts, covering supply, transportation, and distribution. Eskom handed over limited information but refused to disclose the contracts themselves, claiming that doing so would damage its commercial interests and those of its suppliers. The High Court in Pretoria rejected that argument and ordered full disclosure. Eskom appealed.
Parties and background
Eskom Holdings SOC Limited and its information officer took the matter to the Supreme Court of Appeal, seeking to overturn the High Court’s order. AfriForum, a civil rights organisation representing a large national membership of electricity consumers, argued that the information was of significant public interest, particularly in light of ongoing loadshedding and concerns about governance at Eskom.
AfriForum grounded its case in a straightforward statutory right. Under PAIA, the public is entitled to access records held by public bodies. Contracts funded by public money and directly affecting electricity supply should not be shielded from scrutiny. Eskom disagreed, insisting that disclosure would expose sensitive pricing information and weaken its position in future supplier negotiations.
Arguments before the court
Eskom contended that releasing the contracts would likely cause financial harm by enabling suppliers to inflate prices or gain an advantage in negotiations. It also argued that third-party suppliers who had entered into agreements with a reasonable expectation of privacy would be prejudiced if confidential commercial terms were made public.
AfriForum challenged these claims, arguing that coal and diesel are publicly traded commodities and that prices are already widely available. Eskom’s procurement is conducted through open and competitive tenders, meaning pricing and contract terms are already subject to scrutiny. AfriForum further argued that transparency was necessary given allegations of corruption and maladministration linked to Eskom in public reports.
Court’s findings on secrecy and harm
Justice E Baartman, writing for the court, found that Eskom fell well short of the legal threshold required to refuse access under PAIA. A public body must provide concrete, evidence-based reasons to justify secrecy. Eskom had provided neither.
The court stated, “The alleged harm is not a probable or reasonable apprehension,” finding that Eskom’s concerns about pricing and collusion were unsupported by facts. It further noted that coal and diesel prices are widely known and that Eskom’s own competitive tender process already exposes pricing and contractual terms to scrutiny.
On confidentiality, the court found Eskom’s position at odds with its own procurement practices. Once contracts are awarded, key terms frequently become accessible, particularly in review proceedings, and cannot be treated as inherently secret.
The court further held, “It is therefore not reasonable to apprehend collusion among competitors who have not done so in the past.” It rejected Eskom’s argument that disclosure would distort market behaviour.
Default position of transparency
Central to the judgment was the reaffirmation of the constitutional right of access to information. The court emphasised that PAIA establishes disclosure as the default position, and that the burden lies on the public body to justify any refusal. Eskom could not discharge that burden.
The court stated, “The public, in whose interest Eskom concludes these contracts, has a right to access them. That is the default position.” The court found no factual basis to support Eskom’s claim that disclosure would harm its commercial interests or those of third parties.
The court also made clear that blanket claims of confidentiality are insufficient. Public entities must demonstrate specific, real, and substantiated risks of harm before access can be refused.
Final outcome
The Supreme Court of Appeal dismissed Eskom’s appeal in full and upheld the High Court’s order compelling disclosure. Eskom was ordered to pay costs, including the costs of two counsel.
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