Outa’s application to access Sanral and N3TC information dismissed with costs

An Organisation Undoing Tax Abuse (Outa) application to the High Court in Pretoria for access to information from the SA National Roads Agency (Sanral) and private concessionaire N3TC to determine if the long-distance concessionaire was making excessive profits has been dismissed with costs.

Outa brought the application in terms of the Promotion of Access to Information Act (PAIA) against Sanral and N3TC, which manages the toll concession route from the Cedara interchange in KwaZulu-Natal to the Heidelberg south interchange in Gauteng.

Judge Anthony Millar said Outa’s claim that the disclosure of the disputed documents is in the public interest is predicated entirely, not on any irregularity with the contract that was concluded in 1999 between Sanral and N3TC, but rather on the perception, after an investigation conducted some 20 years after the fact, that N3TC in the performance of its obligations in terms of the contract “may well have made a profit”.

“There is no provision in our law that any private third party, which contracts with the State, is prohibited within the confines of a lawfully made and awarded tender to make a profit.

“Section 46 of PAIA applies only to contraventions or failure to comply with the law or public safety or environmental risk.

“None of these apply in the present case,” he said.

Outa application

Millar said the entire application by Outa was predicated on Item 1 of Part A – the main contract – being made available.

He said although the main contract was apparently already publicly available, Outa did not disclose this in its application.

“What it did disclose through the request, was knowledge of specific parts of the main contract.

“Of the 14 items requested in Parts A and B [of Outa’s application], eight of the items are specifically referenced in the main contract,” he said.

He said Sanral’s grounds for refusal, although not furnished before the institution of this application, was that information that had been requested was not in its possession and that information that is in its possession “is confidential and that it is entitled to refuse access to that information”.

It was also argued that the disclosure of the records would cause harm to N3TC.

Millar said that given the particularly small and competitive market within which it operates, N3TC’s private financial information would likely cause harm if disclosed to a competitor.

He said that disclosing N3TC’s commercial records in their raw form would also prejudice N3TC in its ability to tender fairly and competitively.

Already public record

Millar added that the main contract for which Sanral issued and awarded a tender was already a public document by the time the present proceedings were brought.

“Having found that Outa already had the main contract or at least substantial portions of it, it is apparent that the present application has nothing to do with the award of this contract,” he said.

ALSO READ: Don’t let Andile Nongogo near public money – Outa

Millar said the present case concerns the implementation of the contract, but it was neither argued nor was any case made out that N3TC had failed to comply with its obligations in terms of the main agreement and to deliver that for which it had been contracted.

“The making of profit, in a private company, is an everyday commercial consequence and is not in and of itself a matter which requires disclosure in the public interest.

“I find that the public interest override [of Section 46 of PAIA] finds no application in respect of the disputed documents, and accordingly, the application fails,” he said.

‘Sanral vindicated’

Vusi Mona, Sanral’s general manager for communications and marketing, welcomed the judgment, adding that the court’s findings rejected the notion that the roads agency was involved in any nefarious activity.

“The perception created in the public mind by Outa has now been firmly rejected by the court, and it should be a lesson to those who are making unfounded allegations against Sanral. We have been vindicated.

ALSO READ: New RAF legislation will not withstand legal scrutiny – Outa

“As a state-owned entity, we follow all the prescripts of the law related to the disclosure of information.

“Such allegations create unnecessary speculation and negativity, which in turn has a negative impact on Sanral’s reputation.

“We are pleased that the court has now pronounced decisively on these baseless attempts to impugn the reputation of Sanral,” he said.

Stefanie Fick, executive director of the accountability division of Outa, said it is obviously disappointed that its application was dismissed.

“Outa will consult with its attorneys and counsel, and if it is in the interest of justice and in the public’s interest, we will appeal,” she said.

Who benefits from the excess?

Fick added that although the contract between Sanral and N3TC has so far provided quality upgrades to the N3, Outa is, in essence, concerned that the amount paid in tolls by road users for this service is excessive.

“If it is indeed excessive, the question is who benefits from the excess. Should it be a private company, Sanral or the public,” she asked.

Fick said the court found that the “public interest in the disclosure of the contract/s and confidential information of N3TC” does not “outweigh the harm to N3TC’s present and future financial interest” and that disclosure would “prejudice them in their future commercial endeavours”.

ALSO READ: Outa flags Nsfas’s parliament report discrepancies

However, she said Outa is of the view that when private companies do business with government, they ought to be forced to be as transparent as government, if not more.

“Private companies doing business with government are allowed to make profit but ought not to be allowed to earn excessive profits.

“How can we, as civil society, determine this if we are not allowed access to the information,” she asked.

Outa has brought similar PAIA applications, which are still pending, against the Bakwena Platinum Corridor Concessionaire and Trans African Concessions (TRAC).

Bakwena manages the 90km section of the N1 north of Pretoria to the Warmbaths interchange and the 290km of the N4 west of Pretoria to the Botswana border, while TRAC manages the toll concession on the N4 from Pretoria to the Mozambique border.

This article was republished from Moneyweb with permission. Read the original here