The government’s annual R1-trillion procurement spend, led by its key state-owned entities (SOEs), will come under increased public scrutiny following a key ruling by the Supreme Court of Appeal (SCA).
The ruling sets the bar higher for government entities to refuse requests for information on contracts entered into with the private sector.
The country’s second-highest court ruled Eskom must avail its multibillion-rand coal and diesel procurement contracts, with contracts relating to neighbouring countries, to AfriForum.
The court found that the reasons advanced by Eskom, which procures more than R70bn in coal annually, to decline the request by AfriForum to have sight of its coal and diesel contracts fell short of the legal requirements of the Promotion of Access to Information Act (Paia).
One of the reasons advanced by Eskom and rejected by the court is that coal contracts are commercially sensitive, and the publication of the terms and conditions it has agreed with suppliers would compromise it in future negotiations. This has the potential to allow existing and prospective suppliers to negotiate higher prices.
The SCA held that the right to access information held by a public body is entrenched in the constitution.
“The public, in whose interest Eskom concludes these contracts, has a right to access them. That is the default position. The reasons advanced to deny access do not meet the required test,” the SCA found.
Buoyed by the legal victory, AfriForum has assembled a team that will peruse the contracts that Eskom will hand over to it to see if “the coal and diesel contracts are market-related and legally concluded”.
However, this process might be delayed should Eskom opt to seek an appeal of the SCA ruling at the Constitutional Court.
The public, in whose interest Eskom concludes these contracts, has a right to access them. That is the default position. The reasons advanced to deny access do not meet the required test.
— Supreme Court of Appeal
The power producer said it is studying the judgment before it decides on the next course of action.
Mzukisi Kota, partner and head of energy at law firm Webber Wentzel, said the default is that all information held, particularly by a public body, is available to the public, except where there is a ground to refuse.
“Because it is framed in that way, you have to show that there are compelling grounds to limit the constitutional right of access to information. This is very important, because without access to information and the ability to interrogate it, there is ultimately a constitutional issue around the use of public resources,” Kota said.
“Your mere pricing cannot be protected simply on the basis of confidentiality. You might wish it wasn’t public, but that’s not, in itself, protectable confidentiality in our law.
“What you have to show is why disclosure would cause commercial harm. For example, if you have a unique formula or intellectual property that competitors could use, that may justify protection. But simply saying ‘this is pricing’ is not enough.”
Eskom and sister company Transnet are some of the biggest procurers of services and goods in South Africa. In its 2025 financial year, Eskom spent about R150bn on primary energy: coal, nuclear, water, diesel and renewable sources.
The huge contracts that Eskom, Transnet, Prasa and other state-owned entities award have seen unscrupulous business people circle the institutions. Eskom and Transnet emerged as the nerve centres of the Gupta family’s daring state capture project, syphoning billions of rand in contracts from the companies.
Kota said the Eskom SCA decision will apply to all SOEs.
The judgment “makes it clear that reliance on ‘commercial sensitivity’ or ‘commercial risk’ is actually quite limited. It is not a blanket justification. It raises the standard in the sense that refusals must now be assessed far more rigorously. You must substantiate, based on the facts, why disclosure would cause commercial harm,” Kota said.
“It also means that organs of state need to better capacitate information officers. This is not a tick-box exercise; it requires substantive judgment.”
Wayne Duvenage, CEO of the Organisation Undoing Tax Abuse (Outa), said the information sought by AfriForum does not infringe on any of Eskom’s commercial rights.
“Eskom is a public body. Eskom works for you and me. So there’s no commercial interest; it’s not competing with anybody. It has a monopoly, and it should never use that as an argument for withholding information. So, quite frankly, Eskom is out of line with those arguments.”
Strategic fuel reserves
AfriForum has now set its sights on lifting the lid on South Africa’s strategic fuel reserves as war in the Middle East threatens domestic supply.
“Experts have expressed concern about the fact that South Africa may have just two to three weeks of fuel reserves left, with prices set to surge in April.
“This is far below global benchmarks, which require reserves for at least 90 days. The government insists there is no cause for panic but continues to refuse to disclose the state of the nation’s fuel reserves,” AfriForum said on Tuesday.
The price of fuel is set to increase by a record figure in April as Brent crude prices surge amid turmoil in the Middle East.
The department of mineral & petroleum resources said last week that South Africa’s fuel supply is secure and that it is maintaining contact with oil companies to ensure the stability and security of the fuel supply and is closely monitoring the conflict in the Middle East.
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