BHP Billiton PLC Inc v De Lange

Media 24, a media house, requested information from Eskom in terms of the Promotion of Access to Information Act 2 of 2000 (PAIA) concerning electricity supply contracts concluded in the 1990s between Eskom and companies in the BHP Billiton group for the Hillside aluminium smelter in Richards Bay and the Mozal smelter in Maputo. These contracts provided for electricity at tariffs lower than standard rates and were of significant public interest due to Eskom’s financial difficulties, load-shedding, and tariff increases. Eskom partially refused the request, declining to disclose pricing formulae and contract commencement and termination dates, relying on PAIA grounds protecting confidential and commercial information. Media 24 launched an application in the South Gauteng High Court to compel disclosure. The High Court largely ruled in Media 24’s favour. BHP Billiton appealed to the Supreme Court of Appeal (SCA).

The appeal was dismissed, except that the High Court’s costs order was amended to order Eskom to pay the costs of the application, including the costs of two counsel. No order as to costs was made on appeal.

The case is significant for clarifying the burden of proof on third parties and public bodies seeking to refuse access to information under PAIA, particularly in relation to alleged commercial harm. It affirms a robust, transparency-enhancing interpretation of PAIA where information held by public bodies concerns matters of substantial public interest, such as public utilities and state contracts.