Pretoria, 14 November 2023 – The South African National Roads Agency SOC Limited (SANRAL) welcomes the Gauteng High Court’s decision to dismiss with costs an application by the Organisation Undoing Tax Abuse (OUTA) for access to information.

OUTA had approached the court with an application to force SANRAL, in terms of the Promotion of Access to Information Act (PAIA), to give OUTA documents related to a tender awarded to N3TC, a private company which won a contract for the construction and management of a portion of the N3 highway between Heildelberg South in Gauteng and Cedara in KwaZulu-Natal.
Judge Anthony Millar heard the matter on 10 October 2023 and handed down his judgment today, 14 November 2023.
In refusing the application, Judge Millar noted that despite OUTA’s application for access to the main contract, the organisation did not disclose to the court that the document it sought was apparently already publicly available.

The court was unequivocal in rejecting the application stating that “OUTA inexplicably failed to place before the Court, when it was clearly able to do so, the main agreement or portions thereof that it had in its possession”.

In rejecting OUTA’s application for documentation from SANRAL that related to contracts entered into between N3TC and third parties, the court found that SANRAL does not have these document in its possession and that “in any event, those contracts are private contracts entered into between N3TC and other parties. SANRAL is not party to those private contracts.
“PAIA does not require that the party from whom information is requested must embark upon a process to obtain information or documents that are not already in their possession,” the court noted.

The court noted that Section 36 of the Act makes clear that SANRAL should refuse access if N3TC does not agree to it being provided to OUTA in circumstances where the information was commercially sensitive. The court added that Section 36(1) of PAIA provides that access to a record must be refused if it contains (b) financial, commercial, scientific or technical information, other than trade secrets, of a third party, the disclosure of which would be likely to cause harm to the commercial or financial interests of that third party.

In refusing OUTA’s public interest override as contained in Section 46 of PAIA, the court stated: “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 that contract.

“The present case concerns the implementation of the contract. 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.

“For the reasons set out above, I find that the public interest override finds no application in respect of the disputed documents and accordingly the application fails,” said Judge Millar.

Vusi Mona, SANRAL’s General Manager for Communications and Marketing welcomed the judgment, saying 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,” said Mr Mona.

“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,” added Mr Mona.