Afriforum NPC v Eskom Holdings SOC Ltd and The Information Officer - Eskom Holdings SOC Ltd (22 March 2024) [ZAGPPHC]

The case involves an application by Afriforum NPC against Eskom Holdings SOC Ltd regarding access to certain records. Afriforum requested records from Eskom, which were partially disclosed. The records denied included a list of Independent Power Producers feeding electricity into the national grid, active coal and diesel contracts, and contracts with neighboring countries for electricity supply. Eskom refused access citing exemptions under PAIA, specifically sections 42(3)(b) and (c). Afriforum appealed internally, but Eskom failed to respond within the required timeframe, leading to the appeal being deemed dismissed. Afriforum then brought the matter to court seeking access to the denied records.

Eskom's refusal was based on grounds of potential harm to commercial interests and confidentiality. However, Eskom's justifications were found to be insufficient and lacking in detail. Eskom later attempted to introduce new grounds for denial under POPI, which Afriforum argued was unjust as it was not raised earlier. The court found that Eskom failed to provide adequate reasons for denial and that the public interest in transparency and accountability outweighed any potential harm.

The court highlighted Eskom's irregular expenditure issues and the need for transparency in procurement processes. It underlined the public's right to access information held by public bodies and the importance of disclosing contracts related to coal, diesel, and electricity supply to neighboring countries. The court ruled in favor of Afriforum, setting aside Eskom's refusal and ordering the disclosure of the requested records within 10 days. Costs were awarded to Afriforum.

The core legal principle underlying the decision is that public bodies, such as Eskom, have an obligation to conduct their operations transparently and accountably. The court held that the public has a right to access information held by public bodies, as enshrined in the Constitution and the Promotion of Access to Information Act (PAIA). In this case, the court found that Eskom failed to provide sufficient and valid justifications for denying access to the requested records related to coal, diesel, and electricity supply contracts with neighboring countries. The court ruled that the public interest in transparency and accountability outweighed any potential harm or confidentiality concerns raised by Eskom. Therefore, the court ordered Eskom to disclose the requested records to Afriforum within a specified timeframe.

The court referred to the case of Transnet Ltd and Another v SA Metal Machinery Co (Pty) Ltd 2006 (6) SA 285 (SCA) to support the principle that public bodies, like Eskom, have a duty to conduct their operations transparently and accountably. This case law was cited to stress the importance of transparency in procurement processes and the public's right to access information held by public bodies.