The Supreme Court of Appeal (SCA) has dealt a significant blow to Eskom’s efforts to keep its procurement details private, dismissing the power utility’s appeal against an order to grant AfriForum access to its active coal and diesel contracts.

In a judgment delivered on 23 March the SCA affirmed a previous High Court ruling that Eskom must disclose information regarding its fuel supply agreements, as well as contracts for electricity supplied to neighbouring countries.

The legal battle began in June 2022 when AfriForum filed a request under the Promotion of Access to Information Act (PAIA). Eskom had refused to hand over specific documents, arguing that disclosure would likely cause commercial harm or disadvantage the utility in future negotiations.

However, the SCA found Eskom’s reasoning “obviously contradictory”. The court noted that because coal and diesel prices are matters of public knowledge and are procured through transparent tender processes, the claim of commercial sensitivity held no merit.

“Once a contract is awarded the confidentiality clause offers no further protection from disclosure as regards the tender price,” the court noted, echoing the High Court’s initial observation.

A central point of the appeal was the legal standard used to determine if information should be withheld. While the High Court originally applied a “more stringent” test, the SCA clarified that the correct standard is the “Transnet test”. This test measures the “degree of expectation” of harm rather than just the probability.

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Even when applying this specific legal lens, the SCA found that Eskom failed to provide sufficient evidence that disclosure would negatively affect its negotiating position. The alleged harm was neither a “probable” nor a “reasonable apprehension”. Eskom did not meet the required standards for refusal under sections 36 and 42 of PAIA.

AfriForum had argued that the sought-after information was of high public interest and not commercially confidential. While the SCA noted that general allegations of corruption are not enough to trigger the “public interest override” in section 46 of PAIA, it ruled that the default position remains transparency for public bodies.

The appeal was dismissed with costs, including the costs of two counsel. This ruling reinforces the mandate that state-owned enterprises must operate with a high degree of accountability regarding their spending of public funds.

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