Outa secures court order against Sanral over toll profits

The South African National Roads Agency (Sanral) has been ordered by the High Court in Pretoria to file its heads of argument within three days to an application by the Organisation Undoing Tax Abuse (Outa) for access to the N3TC toll concession contracts and all financial records on the 30-year concession.

N3TC operates the toll concession on the N3 from Pretoria to Durban.

Judge Nomsa Khumalo issued the order on Wednesday. It follows Outa in June 2022 applying to the court to compel Sanral to file its heads of argument to Outa’s main application for access to documents related to the N3TC toll concession contract.

Outa submitted a formal request to Sanral through the Promotion of Access to Information Act for the N3TC contract records in July 2019.

Outa has requested the same information from Sanral on other long distance toll concessionaires.

These requests are driven by Outa’s long-standing attempts to obtain more transparency from Sanral about possible “excessive profits” being made by these concessionaires.

The N3TC case revolves around Sanral’s refusal, supported by N3TC, to provide Outa with records to allow the organisation to find out how much profit N3TC is making from the contract and Outa’s view that the value of returns for the private companies should be transparent and publicly available.

‘Several years’ since initial request

Outa executive director Stefanie Fick said on Thursday that Outa has for several years been writing to Sanral and the three major toll road concessionaires – N3TC, Bakwena and Trans African Concessions (TRAC) – to ask for the information relating to these contracts.

“We have properly completed all requests in terms of the Promotion of Access to Information Act but we have had no joy, so we approached the courts to ask them to compel Sanral to provide us with the information.

“Unfortunately, the run-around didn’t stop there. After launching the application, we had to force Sanral to file something as elementary as heads of argument,” said Fick.

“It is extremely frustrating for civil society to be given the run-around and have to take years to obtain information that should be made freely available to the public.”

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Outa’s legal project manager Brendan Slade said on Thursday Sanral had ample time between June 2022 and February 2023 to comply and file its heads of argument in opposition to Outa’s application.

Stalingrad tactics

“There is no valid reason for Sanral’s delay but it looks like Stalingrad tactics,” said Slade.

This is a reference to tactics largely intended to delay a court case or legal proceedings from being heard.

“Government seems to regard court rules – and some legislation – as mere suggestion. Not only does this create an environment of distrust in government but it also creates the false illusion that if government can get away with it, ordinary citizens could also try this.

“Whether non-compliance with court rules is due to malice, hidden agendas or simply ignorance is completely irrelevant in the greater scheme of things.

“The point is that court rules are not being adhered to and it sends out a very bad message to the public at large, signalling that the rule of law means little to government litigants,” said Slade.

“Not only is a culture of impunity created but also a culture of wasting taxpayers’ money.

“For every postponement, delay, filing of court papers, consultation and so on, someone has to foot the bill. In the case of government litigants, that someone is the taxpayer.”

It is ‘confidential information’ – Sanral

Sanral GM of Communications and Marketing Vusi Mona said in response to a request for comment on the high court order that “the parties are in the process of exchanging heads of argument and will do so timeously to progress the matter”.

Mona added that information required by Outa is confidential information, which belongs to N3TC.

“N3TC was curiously not joined to the proceedings by Outa, which contributed to the delay. Having since been joined to the proceedings, N3TC has recorded its position as regards the information required by Outa.

“They will fully ventilate this position in court proceedings,” said Mona.

Fick added that transparency is very important in a democratic society, and that in terms of the constitution everyone has the right of access to information held by the state.

“Although this is not an absolute right, civil society has a right to know what Sanral is doing with South Africa’s toll revenue.

“Unfortunately, South Africa has too often seen the result of government and its entities operating behind closed doors.

“Transparency is even more important when there is a trust deficit and civil society can no longer trust the state to act in the best interest of its citizens,” said Fick.

Sanral is facing further high court applications related to its long distance toll concession contracts.

An application that slipped through …

The High Court in Pretoria in November 2021 ordered Sanral to provide Outa with the full contract and financial records of the toll concession with Trans African Concessions (TRAC), which manages the N4 between Tshwane and the Port of Maputo in Mozambique.

This application was unopposed, but Sanral claimed in January 2022 that this was due to human error.

It said confusion about the case numbers of high court applications lodged by Outa for information about Sanral’s long distance toll concessionaires resulted in the TRAC applications being heard unopposed.

Sanral has to date not provided the TRAC records to Outa but has filed a rescission application that seeks to overturn the judgment.

Outa has filed an application calling for Sanral to be found in contempt of court for failing to hand over these records.

Both the rescission and contempt of court applications are scheduled to be heard this year.

Outa’s action against Sanral about access to the Bakwena toll concession records is also still ongoing.

Bakwena has the concession for the N1 between Pretoria and Bela-Bela and the N4 from Pretoria to the Botswana border.

This article first appeared on Moneyweb and was republished with permission. Read the original article here.

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