The Supreme Court of Appeal has dealt a major blow to Eskom’s secrecy claims, ruling that the power utility must disclose its coal and diesel contracts to civil rights group AfriForum.
In a judgment handed down on Tuesday, March 23, the court dismissed Eskom’s appeal against an earlier ruling in favour of AfriForum, which had sought access to the records under the Promotion of Access to Information Act.
Judge of Appeal Elizabeth Baartman said the power utility had failed to meet the legal standard required to refuse access to information, stressing that “the default position [is that] a public body must disclose the requested documents”.
Eskom had argued that releasing the contracts would harm its financial and commercial interests, claiming disclosure would “compromise Eskom in future negotiations” and enable suppliers to inflate prices.
However, the court dismissed those claims, determining that they lacked supporting evidence.
Eskom’s reasoning criticised
“It follows that I cannot fault the high court’s finding that there is nothing to support the allegation that the agreements are confidential, contain information that is commercially sensitive, and would disadvantage Eskom,” the judgment states.
The court further criticised Eskom’s reasoning as inconsistent, noting that its arguments were “obviously contradictory” given that coal pricing is already widely known and procurement occurs through competitive tender processes.
Eskom had also warned that disclosure could lead to collusion among suppliers and increased costs. However, the court dismissed the argument as speculative.
“It is therefore not reasonable to apprehend collusion among competitors who have not done so in the past,” the judgment reads.
On diesel contracts, the court was equally blunt, pointing out that fuel prices are publicly available and cannot be treated as confidential.
“In those circumstances, there can be no commercial sensitivity to the disclosure of the price at which Eskom purchased diesel,” the court found.
Public interest
The ruling also addressed Eskom’s argument that disclosure would harm third-party suppliers, finding the claims to be vague and unsupported.
“In the circumstances of this matter, the alleged harm is not apparent… and appears illusionary,” the court said.
AfriForum had argued that the contracts were of significant public interest, particularly in light of when the country was experiencing load shedding and allegations of corruption linked to Eskom’s procurement practices.
While the court did not base its decision solely on public interest grounds, it underscored the constitutional right to access state-held information, noting that “everyone has the right of access to… any information held by the state”.
Crucially, the court found that Eskom had failed to meet the burden required under the law to justify secrecy.
“Eskom has not satisfied the burden placed upon it to justify refusing access to the information sought,” the judgment states.
The appeal was dismissed with costs, including the costs of two counsel.
