Eskom’s application for leave to appeal against the North Gauteng High Court’s ruling that it grant AfriForum access to certain contract records appears to be a desperate attempt to hide irregularities and corruption, says the non-governmental organisation.
AfriForum said Eskom’s seeking leave to appeal proved the utility was desperate to hide the contracts, instead of showing them to the public.
The group said it suspects that the contracts contain information that may reveal irregularities and corruption at the power utility.
The NGO said the utility’s objection to the court order was strange.
This after the court ordered Eskom to disclose the requested information regarding its existing coal and diesel contracts to AfriForum.
The judgment was delivered on March 22.
The lobby group served an application against the utility in July 2022, in terms of the Promotion of Access to Information Act (PAIA), and in which they demanded information on active contracts that Eskom has with various service providers, including coal, diesel suppliers and transport companies.
AfriForum said they suspected that the information contained in these contracts could reveal possible irregularities and corruption at the power utility.
However, Eskom refused to disclose the information after the PAIA application in 2022.
After the court found that Eskom had failed to demonstrate it had reasonable grounds for refusing access to coal and diesel supply and transportation contracts, it ordered that the utility grant AfriForum access to all the records within 10 days, by April 5.
The court said AfriForum had demonstrated in its affidavit that providing the unredacted contracts to the organisation was in the public interest, and added that the contracts were likewise public and should be publicised for transparency and accountability.
However, Eskom filed notice of an application for leave to appeal.
This saw AfriForum start a campaign and call on the public to sign a petition to force Eskom to grant access to their records.
AfriForum campaign officer Charne Mostert said the utility’s continuing to object against the court order was rather peculiar. She said Eskom, as a state utility, had an absolute responsibility to act with openness and transparency in the public and legal sphere.
“Allegations of irregularities and corruption at Eskom are nothing new. On the contrary, the Zondo Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector’s 2022 report already exposed numerous evidence of corruption and irregular expenditure in Eskom.
AfriForum is geared up to scrutinise the contracts, about which there are now numerous questions regarding its regularity,’’ she said.
Eskom spokesperson Daphne Mokwe said the leave to appeal application, which was filed at the Supreme Court of Appeal (SCA), suspended the order of the court. Mokwena said the utility remains steadfast in its commitment to transparency and accountability, while also safeguarding commercial with its suppliers and its ability to operate and deliver its mandate to all its stakeholders.
In its court papers, Eskom said the court had failed to correctly apply public interest override provisions under PAIA. The utility said AfriForum did not substantiate claims that the disclosure of the records would reveal serious breaches of the law, adding that such was corruption linked directly to specific contracts in question. The utility said the court’s consideration accurately weighed the lack of specific evidential support for such claims against the exemptions cited by Eskom.
The utility added that the court misapplied the evidentiary standards by requiring “best evidence” instead of “sufficient evidence” as prescribed under PAIA.
According to the court papers: “Eskom’s evidentiary submissions in the September and November letters were adequate to satisfy the exemption provisions, but the court’s expectations exceeded the statutory requirements, thus leading to an erroneous finding and order.”
Eskom said it had declined to grant access to contracts in terms of section 42(3)(b) and (c) of the PAIA.
They said this section permitted the information officer of a public body to refuse a request for access if the records contained financial, commercial, scientific or technical information that could harm the commercial and financial interests of the State or public body if disclosed.
The utility said it had also demonstrated that releasing the requested information would potentially expose sensitive commercial information, such as contract terms and pricing, which could be detrimental to its negotiation capabilities and financial interests.
Eskom said it had also demonstrated that the information was not just incidental commercial data, but was central to its ongoing business operations and negotiations.
“Eskom thus discharged the onus on it on a balance of probabilities. The court erred in dismissing the evidence-based explanations provided by Eskom, opting instead to rely on generalised allegations of potential unlawfulness,” said Eskom.
The utility added that the court’s conclusion of what was in the public interest was not based on evidence, but merely on assumptions and doubt surrounding its reasons to refuse disclosure.
It said the appeal was necessary to provide judicial guidance on the application of PAIA in situations involving state-owned enterprises and commercial interests, which would aid in future governance and compliance across the public sector
manyane.manyane@inl.co.za