The SCA ruled that Eskom must lift the veil of secrecy over its coal and diesel contracts.
Image: File
Eskom has to disclose its contracts for purchasing and transporting coal and diesel, the Supreme Court of Appeal ruled this week after it rejected Eskom’s argument that the contracts are commercially sensitive.
AfriForum secured the victory over Eskom that will finally lift the veil of secrecy surrounding the power utility’s coal contracts.
In terms of the ruling, all active Eskom contracts relating to the purchase, transport, and distribution of coal and diesel, and the utility’s contracts for the supply of electricity to neighbouring countries, must now be made available to AfriForum.
The Gauteng High Court in Pretoria dismissed Eskom’s refusal to provide access to its coal and diesel contracts under the Promotion of Access to Information Act (PAIA) in 2024.
At that time, Eskom had already been ordered to provide copies of all relevant contracts to the civil rights organisation. The power utility subsequently approached the SCA and argued that the refusal to provide access to the contracts was done to protect commercially sensitive information. However, the court rejected this argument and reaffirmed the high court’s finding that the disclosure of information of this nature is permissible under PAIA legislation.
Judge Elizabeth Baartman emphasised that “the public, in whose interest Eskom concludes these contracts, has a right to access them".
AfriForum’s bid to obtain the documents followed the 2022 blackouts experienced in the country due to load shedding. AfriForum then requested access to specific Eskom records. The power utility only granted some of the information but refused to provide the rest.
The organisation said Eskom procures more than 100 megatons of coal annually, making it one of its largest expenses. Considering documented irregularities regarding Eskom’s procurement processes, findings of the Zondo Commission of Inquiry into State Capture, and detailed shortcomings in Eskom’s own financial statements, transparency regarding these contracts is essential. It argued that the information it sought was of high public interest and not commercially confidential.
AfriForum, from the information Eskom had earlier provided, calculated that Eskom had, in the period 2018 to 2022, sold, supplied, or distributed 60,567 gigawatt hours of electricity to neighbouring countries. In that period, South Africa experienced a critical shortage of electricity, which was sold at exorbitant prices.
AfriForum asserted that given the dire electricity shortage and high costs thereof in South Africa, the public had a right to know at what price and on what conditions Eskom was supplying electricity to neighbouring countries.
In an open tender, repeated before the SCA, Eskom however, has made its contracts regarding electricity with neighbouring countries available. Regarding the coal and diesel contracts, Eskom maintained in argument before the SCA that it was justified in refusing access to this on the basis that such disclosure would likely cause harm to the commercial or financial interests of the State and third parties.
Judge Baartman said no issues of commercial sensitivity arise from the disclosure of the diesel or coal contracts. Regarding the diesel contracts, she said the average diesel price is common knowledge, and disclosure would enable a determination of whether Eskom was paying market-related transport costs.
As was the case in respect of the request for access to the coal contracts, Eskom failed to provide any factual basis for the alleged commercial sensitivity regarding transport costs and the resultant harm anticipated, she said.
“The public, in whose interest Eskom concludes these contracts, has a right to access them. That is the default position. The reasons advanced to deny access do not meet the required test,” Judge Baartman concluded in turning down the appeal.
zelda.venter@inl.co.za