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AfriForum is appearing in the Supreme Court of Appeal in Bloemfontein today to defend its earlier High Court victory against Eskom. The Gauteng High Court in Pretoria rejected Eskom’s refusal to grant access to its coal and diesel contracts in terms of the Promotion of Access to Information Act (PAIA) in March 2024. The Court ordered Eskom to provide AfriForum with copies of all active contracts relating to the purchase, transportation and distribution of coal and diesel, as well as unredacted contracts for the supply of electricity to neighbouring countries.

Eskom has now approached the Supreme Court of Appeal, arguing that it was justified in refusing access to the contracts in terms of Section 42 and Section 36 of PAIA. These Sections relate to the protection of commercially sensitive information.

AfriForum maintains that Eskom failed to provide adequate factual grounds to justify its refusal and merely relied on generic references to commercial sensitivity without demonstrating probable harm. The High Court correctly found that disclosure is the rule under PAIA, and exemption from disclosure is the exception.

“This matter goes beyond a technical dispute about statutory interpretation. Coal procurement constitutes Eskom’s single largest expenditure item, involving the purchase of more than 100 megatons of coal annually. In light of documented procurement irregularities at Eskom, findings of the State Capture Commission and reported control deficiencies in Eskom’s own financial statements, transparency in relation to these contracts is not optional – it is constitutionally required,” says Morné Mostert, Manager of Local Government Affairs at AfriForum.

Section 32 of the Constitution guarantees the right of access to information held by the state. Section 217 further requires that public procurement must be fair, equitable, transparent, competitive and cost-effective. AfriForum argues that once an organ of state enters into public procurement contracts of this magnitude, the public is entitled to scrutinise the pricing and terms to ensure that consumers are not bearing the cost of inflated or irregular agreements.

“Eskom’s attempt to withhold this information under broad claims of commercial confidentiality undermines accountability and erodes public trust. The public has a right to know whether coal and diesel contracts are market-related and lawfully concluded. Accountability cannot exist behind redactions and secrecy. The High Court correctly held that Eskom did not discharge the burden required under PAIA to justify refusal,” says Mostert.

AfriForum will continue to defend the principle that state-owned entities are accountable to the public and that transparency is a constitutional imperative, not a discretionary courtesy.

The matter is expected to be heard for one day.

Issued by AfriForum