Court orders SANRAL to give OUTA the N4 toll road operator's contract and financial records
OUTA has won a high court order against SANRAL, which orders the national roads agency to hand over a copy of the toll concession contract with Trans African Concessions (TRAC) along with financial and other records.
The concession contract gives TRAC the right to operate the N4 toll road, which runs from the City of Tshwane to the Maputo port.
On 15 November 2021, the Pretoria High Court ordered SANRAL to hand over the documents to OUTA within 15 days of the order being served on it. SANRAL must also pay OUTA’s court costs.
"This is another big win for transparency. SANRAL refused to provide the documents requested and forced OUTA to resort to legal action. All SANRAL really managed to do was delay the inevitable. Unfortunately, this is a strategy frequently used by government to block information," says Advocate Stefanie Fick, OUTA Executive Director.
The legal action
In June 2020, OUTA submitted a request for information in terms of the Promotion of Access to Information Act (PAIA), asking for a copy of the concession contract.
SANRAL failed to respond, which is legally deemed to be a refusal to comply.
In February 2021, OUTA filed legal action against SANRAL in the Pretoria High Court, demanding the documents. SANRAL failed to oppose the application so the order was granted to OUTA.
This is OUTA’s second PAIA court win this month
Less than two weeks ago, OUTA won another court action against another state entity which refused to comply with a PAIA request. In that case, the Johannesburg High Court ordered the Services Sector Education and Training Authority to hand over records of a controversial contract worth R163 million that OUTA had requested nearly three years earlier (see here).
What OUTA is looking for: toll road profits and possible misuse of the BRICS loan
SANRAL received a loan of R7 billion from the BRICS New Development Bank, announced in September 2019 and repayable over 15 years, for strengthening the toll roads programme. At the time, OUTA called for clarity on this loan (see here).
“The purpose of the loan is unclear and SANRAL refused to disclose the details of the terms. OUTA intends to establish whether this loan was used to further fund the concessionaire agreements. OUTA intends to establish whether the loan amounts were allocated and used to fund the concessionaire agreements in relation to the concessionaire tolled routes (N3TC, Bakwena and TRAC),” said Advocate Stefanie Fick, OUTA Executive Director, in the founding affidavit in the application against SANRAL, explaining why accessing the documents which SANRAL refused to hand over is in the public interest.
“To the best of OUTA’s knowledge, the concessionaires have been awarded contracts to maintain the toll roads and levy tolls for those roads in order for it to be self-sufficient… OUTA further wishes to establish whether TRAC is generating revenue in terms of the concessionaire agreement that disproportionately exceeds the actual costs related to maintaining the toll roads.” If TRAC is making excess profit, this may be in contravention of the Public Finance Management Act.
“In addition, OUTA intends establishing whether the above-mentioned loan is going towards the GFIP bond (e-tolled roads) or other SANRAL managed roads which are supposed to be self-funding,” said Fick in the affidavit.
These are the documents that SANRAL must provide to OUTA
1. A copy of the SANRAL concession contract with TRAC for the N4 from Tshwane to Maputo port;
2. A copy of all annexures and addenda to this contract;
3. A copy of all amendments and addenda to this contract;
4. A copy of all operation and maintenance contracts between TRAC and the O&M Contractors, relating to the concession contract;
5. A copy of the operational and maintenance manual relating to the concession contract;
6. A copy of the contracts with independent engineers relating to the concession contract;
7. A copy of all the independent engineers’ reports submitted to SANRAL relating to the concession contract;
8. A copy of all construction work contracts entered into by TRAC relating to the concession contract;
9. A copy of all performance certificates issued relating to works contracts relating to the concession contract;
10. A copy of all “taking over certificates” issued in terms of the concession contract;
11. Copies of TRAC’s complete financial statements submitted to SANRAL in terms of the concession from 1999/2000;
12. Copies of all reconciliations of TRAC’s profit and loss accounts, with their proposed budgets, submitted to SANRAL in terms of the concession, from 1999/2000.
13. Copies of all annual reports submitted to SANRAL in terms of the concession contract from 1999/2000, certifying that the highway usage fee was correctly calculated.
14. Copies of the lists submitted to SANRAL in terms of the concession of TRAC’s lenders and creditors to which TRAC owes more than R10 million.
Two more OUTA cases against SANRAL
OUTA is currently involved in two other court actions against SANRAL over its refusal to provide information requested in PAIA applications in connection with toll road concessionaires Bakwena and N3TC. The concessionaires are applying to be added to the cases to oppose OUTA’s access to this information, which raises concern over what is being hidden. OUTA believes this is just an attempt to delay the inevitable handover of information. OUTA hopes these matters will be finalised during the first half of 2022.
A soundclip with comment by OUTA Executive Director Advocate Stefanie Fick is here.
More on OUTA’s search for information on SANRAL’s national toll road concessions (not the e-tolls) is here.