Outa takes Sanral to court over national toll concessions secrecy
The Organisation Undoing Tax Abuse (Outa) has taken the South African National Roads Agency (Sanral) to court over a request for access to information using the Promotion of Access to Information Act (Paia).
The original request was submitted to Sanral in July 2019, asking how much the agency's toll road operators were collecting and how much they hand over to Sanral.
But Sanral failed to provide a formal response. Outa then filed an internal appeal against Sanral's refusal to grant these records after which Outa approached the North Gauteng High Court in Pretoria in July last year to compel the agency to disclose the records requested.
After a setback because of Covid-19, the matter was to be heard on Wednesday on an unopposed roll. But, according to a statement by Outa on Wednesday afternoon, Sanral’s lawyers indicated very late on Tuesday that they had decided to oppose the request.
The court granted an order against Sanral for wasted costs. The agency was ordered to file their answering affidavit and condonation application within 15 days.
Sanral spokesperson Vusi Mona said the matter was sub judice and thus he was unable to speak about the case. He said in court Sanral would ventilate the reasons why the Paia request was denied.
Paia is a freedom of information law which gives the constitutional right of access to any information held by the state and any information held by private bodies that is required for the exercise and protection of any rights.
Outa's request specified three national concessionaire routes, the N1, N3 and N4 which are operated by Bakwena, Trans African Concessions (TRAC) and N3 Toll Concession (Pty) Ltd (N3TC).
Bakwena operates part of the N1 between Pretoria and Bela-Bela as well as the N4 from Pretoria through to the Botswana border, while TRAC operates the N4 stretching from Pretoria to the Mozambique border. N3TC runs the N3 from Pretoria to Durban.
According to Brendan Slade, legal project manager at Outa, the organisation believes it is in the public interest that Sanral is transparent about the contracts with the three concessionaires.
The contracts — or private-public partnerships (PPP’s) — entail that Sanral transfers road assets to the concessionaires for 30 years, during which the concessionaires are responsible for road maintenance, construction and upgrade projects to improve road infrastructure. After this the roads are transferred back to Sanral, purportedly in an upgraded state.
Slade said the concessionaires also manage toll plazas and off-ramps, and collect toll fees.
“We requested information that includes copies of all annexures and addenda relating to the concession contracts and complete financial statements of the concessionaires for each fiscal year from 1999 to present.
“To date, Sanral has failed to furnish Outa with this information, warranting Outa to approach the court. Without the information we seek, Outa has no way of knowing if the private concessionaires are collecting excessive amounts of revenue in toll fees at Sanral’s and taxpayers’ expense.
“Transparency is crucial — while the absence thereof leaves more questions than answers.
“If these concessionaires are collecting profits in proportion to the work rendered, meaning that there is nothing untoward about the money they generate, why all the secrecy?”
Minister Fikile Mbalula confirmed to questions in parliament in April that the N3TC generated just over R2bn through toll plazas operated in 2019, while Sanral generated R270m for Sanral plazas.
The N3TC comprises the De Hoek, Wilge, Tugela, Mooi River plazas and associated ramp plazas. Sanral manages the Marriannhill plaza.
“What percentage of N3TC’s collections is paid over to Sanral, we don’t know, but we suspect massive profits by N3TC. The information we request will place us in a better position to determine this.”
Advocate Stefanie Fick, executive director of Outa’s accountability division, said it is shocking that Sanral chose not to share information with the public.
“The last-minute decision to oppose our Paia application is nothing but a refusal to be transparent. Not only is it a waste of the court’s time and an abuse of the system, but this type of Stalingrad litigation is once again costing the taxpayer money, since Sanral is a state-owned enterprise funded with our taxes.
“One of the reasons state capture happened is because of a lack of transparency. When will the government and SOEs realise that they can’t be in a constant battle with citizens and civil society when it comes to transparency?
“If Sanral has nothing to hide, why not share the information with us? Taxpayers have a right to see the terms and conditions of these contracts, and Outa will keep on fighting for total transparency on behalf of South Africans.”
Outa and Sanral N3 toll concession timeline
Outa filed its Paia request to Sanral in July 2019 but Sanral failed to provide a formal response as to why they would not grant access to the records requested.
In November 2019 Outa filed an internal appeal against Sanral’s failure to provide a formal decision. According to Outa, Sanral's failure to provide a formal response is considered as a refusal to grant access to the records.
In July 2020 Outa approached the North Gauteng High Court to compel Sanral to disclose the records.
The matter was initially set down for September 7 2020 but was removed from the unopposed roll to afford Sanral an opportunity to formally oppose the application.
The application had been placed on the unopposed roll to be heard on May 5 2021 but late on Tuesday Sanral decided to oppose the request.