Court orders Sanral to hand over N4 toll road contract and financial records

Outa has scored another win as the court ordered Sanral to hand over the contract and financial records for the N4 toll road. The organisation wants to know how much profit Sanral makes from the N4 toll road and if Sanral’s Brics loan is used to fund toll roads that should be self-funding.

The Pretoria High Court on Monday ordered Sanral to hand over the documents within 15 days and also pay Outa’s court costs. The documents include the toll concession contract with Trans African Concessions (TRAC) to operate the N4 toll road which runs from the City of Tshwane to the Maputo port.

Outa submitted a request for information in terms of the Promotion of Access to Information Act (PAIA), asking for a copy of the concession contract in June last year. When Sanral failed to respond, Outa filed legal action against Sanral in the Pretoria High Court in February this year, demanding the documents. Sanral failed to oppose the application and therefore the order was granted to Outa.

“This is another big win for transparency. All Sanral really managed to do was delay the inevitable. Unfortunately, government frequently use this strategy to block information,” says adv. Stefanie Fick, executive director of Outa.

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Why Outa needs the documents from Sanral

She says Outa needs the documents to find out if Sanral was using the Brics loan to fund toll roads that are supposed to be self-funding. Sanral received a R7 billion loan from the Brics New Development Bank in September 2019 that must be repaid over 15 years to strengthen the toll roads programme.

“At the time, the purpose of the loan was unclear and Sanral refused to disclose the details of the terms. Outa intends to establish whether this loan was used to further fund the concessionaire agreements with N3TC, Bakwena and TRAC,” Fick says in the founding affidavit for the application to explain why having access to the documents is in the public interest.

According to the concessionaires’ contracts, the companies must maintain the toll roads and levy tolls to be self-sufficient.

“Outa wants to establish whether TRAC is generating revenue in terms of the concessionaire agreement that disproportionately exceeds the actual costs for maintaining the toll roads.”

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Outa is looking for excess profit

If TRAC is making excess profit, it could be a contravention of the Public Finance Management Act. Fick says in the founding affidavit Outa also wants to establish if the loan is used for the GFIP bond (e-toll roads) or other Sanral-managed roads which are supposed to be self-funding.

The documents include a copy of the Sanral concession contract with TRAC, as well as all annexures and addenda, all operation and maintenance contracts between TRAC and the O&M Contractors and the operational and maintenance manual, contracts with independent engineers and their reports, all construction work contracts, performance certificates and taking over certificates.

TRAC must also hand over copies of its complete financial statements, all reconciliations of its profit and loss accounts with their proposed budgets, all annual reports certifying that the highway usage fee was correctly calculated and the lists of its lenders and creditors that TRAC owes more than R10 million.

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Second win for Outa

This is Outa’s second PAIA court win this month. The organisation also won another court action against the Services Sector Education and Training Authority to hand over records of a controversial contract worth R163 million that Outa requested nearly three years earlier.

Outa is currently involved in two other court actions against Sanral due to its refusal to provide similar information for the Bakwena and N3TC toll road concessionaires.

Fick says in these cases, the concessionaires are applying to be added to the cases to oppose Outa’s access to this information, which raises concern over what they are hiding.

“We believe this is just an attempt to delay the inevitable handover of information. Outa hopes these two matters will be finalised during the first half of 2022.”