Eskom Holdings SOC Limited and Another v AfriForum NPC

On 11 June 2022, AfriForum, a non-profit civil rights organisation with over 303,000 members who are Eskom electricity consumers, formally requested access to Eskom's active coal and diesel contracts and contracts to supply electricity to neighbouring countries, in terms of section 18 of the Promotion of Access to Information Act 2 of 2000 (PAIA). This request was made during a period when South Africa was experiencing debilitating blackouts due to nationwide loadshedding imposed by Eskom. On 12 September 2022, Eskom refused access to the coal and diesel contracts, relying on sections 42(3)(b) and (c) of PAIA, claiming disclosure would likely cause harm to its commercial or financial interests. Eskom provided only a list of active coal contracts. AfriForum lodged an internal appeal on 28 September 2022, which Eskom failed to respond to within the statutory period, amounting to dismissal of the appeal. AfriForum then approached the High Court. In correspondence dated 18 November 2022, Eskom provided amplified reasons for refusal, stating that: (a) it spends approximately R70 billion annually on coal purchases and transport; (b) disclosure would enable suppliers to negotiate higher prices; (c) suppliers could collude; and (d) the contracts contain commercially sensitive information. Eskom also relied on sections 36(1)(b) and (c) to protect third party commercial interests. The High Court (Windell J) found Eskom's reasons insufficient and without merit, and ordered disclosure of the information.

• What is the correct legal test to be applied when determining whether disclosure of information 'would be likely to cause harm' under section 42(3)(b) of PAIA or 'could reasonably be expected' to disadvantage under section 42(3)(c)?
• Whether Eskom satisfied its onus to justify refusal of access to the coal and diesel contracts under sections 42(3)(b) and (c) and sections 36(1)(b) and (c) of PAIA?
• Whether the duty on a public body to provide reasons for refusal of access to information was met?
• Whether section 46 of PAIA (mandatory disclosure in public interest) applied to override any grounds for refusal?
• What is the default position under PAIA regarding access to information held by public bodies?

The appeal was dismissed with costs, including the costs of two counsel. The High Court's order directing Eskom to grant AfriForum access to the requested coal and diesel contracts was upheld.

The binding legal principles established are: (1) The test for determining whether disclosure would cause harm under sections 42(3)(b) and (c) of PAIA is the Transnet test: the distinction between 'would be likely to cause harm' and 'could reasonably be expected' is measured by degrees of expectation, not probability. Both involve objectively probable results. Section 42(3)(b) requires something that is indeed expected (necessarily including that which would reasonably be expected), while section 42(3)(c) requires consequences that could be expected as probable if reasonable grounds exist for that expectation. (2) The default position under PAIA is that public bodies must provide requested information (section 11). The onus is on the public body to justify refusal with adequate reasons and factual evidence specific to the grounds relied upon. (3) Information obtained through public tender processes, where prices and contract terms are disclosed to bidders and unsuccessful bidders have rights of access, cannot ordinarily be withheld on grounds of commercial sensitivity or confidentiality. (4) General, speculative, or contradictory allegations of potential harm are insufficient to justify refusal of access to information. The alleged harm must be shown to be a probable or reasonable apprehension based on real and substantial grounds. (5) Where information (such as commodity prices) is publicly available from other sources, a public body cannot claim commercial sensitivity as grounds for refusal.

The Court made the following obiter observations: (1) Regarding section 46 of PAIA (mandatory disclosure in public interest), compliance requires evidence specific to the contracts sought to be accessed. General allegations of corruption at a public entity are not sufficient to invoke section 46. (2) Once a contract is awarded through a tender process, the confidentiality clause offers no further protection from disclosure as regards the tender price. (3) The Court noted that Eskom had made its contracts with neighbouring countries available during the appeal process, rendering that aspect of the original request moot. (4) The Court acknowledged the context of the request, noting that allegations of corruption and state capture had been levelled at Eskom in the Zondo Commission report, the independent auditor's report, and other sources, and that during the relevant period Eskom had sold substantial electricity to neighbouring countries while South Africa experienced critical shortages. (5) The public has a right to access contracts concluded by Eskom in the public interest, particularly given Eskom's position as a wholly state-owned public entity with a monopoly in electricity supply and its precarious financial position.

This case is significant in South African administrative law and constitutional jurisprudence for several reasons: (1) It affirms and applies the Transnet test for determining when disclosure would cause harm under PAIA, clarifying that the distinction between 'likely to cause harm' and 'could reasonably be expected' relates to degrees of expectation, not probability; (2) It reinforces the default position that public bodies must disclose information held, with the onus on the public body to justify refusal on specific grounds; (3) It emphasises that public bodies must provide adequate, specific, and factually supported reasons for refusing access to information, not general or speculative allegations; (4) It confirms that information obtained through public tender processes cannot generally be withheld on grounds of commercial sensitivity, as the tender process itself involves disclosure obligations; (5) It underscores the importance of transparency and accountability for state-owned entities, particularly those providing essential services and subject to allegations of corruption and state capture; (6) It demonstrates the courts' willingness to scrutinise and reject inadequate justifications for withholding information from the public; (7) It gives practical effect to the constitutional right of access to information under section 32 of the Constitution; and (8) It provides guidance on the application of sections 36, 42, and 46 of PAIA in the context of state-owned entities and public procurement.