OUTA files complaints with Information Regulator over public entities’ secrecy

Sanral and the Construction SETA are keeping contracts with questionable companies secret, in line with a government culture of blocking the public from accessing information

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24/04/2024 05:35:17

Image: Shutterstock/Sanral/CETA / OUTA compilation

OUTA files complaints with Information Regulator over public entities’ secrecy

OUTA has filed complaints against the South African National Roads Agency Ltd (Sanral) and the Construction Education and Training Authority (CETA) over those entities’ refusal to provide OUTA with information requested on contracts with two businesses linked to questionable activities.

The information was requested in terms of the Promotion of Access to Information Act (PAIA). Sanral provided part of the information requested but refused the rest, while the CETA ignored the request.

In terms of PAIA, disclosure is the rule not the exception, says Asavela Kakaza, OUTA Legal Project Manager.

“It is without doubt that section 11 of PAIA imposes a duty on a public body to give access to information when so requested. This approach is further supported by section 32 of the Constitution which ensures the right not to be refused access to information. Furthermore, section 11 of PAIA makes it clear that, under our law, disclosure of information is the rule and exemption from disclosure is the exception,” says OUTA in the complaint to the Information Regulator.

The Sanral refusal: The R4.7bn contract with AquaEXR

On 23 June 2023, OUTA submitted a request for information in terms of PAIA to Sanral, asking for information on a specified tender awarded on 3 May 2023 to the AquaEXR Joint Venture for capacity improvements on the section of the N3 in KZN from Westville viaduct to Paradise Valley interchange for R4.7 billion. On 20 October, Sanral partially granted the request, providing access to some documents but refusing access to the rest in terms of sections 36(1) and 37(1) of PAIA on the basis that this needed consent from the third parties who were affected as this was commercially sensitive information. However, there is a lack of clarity over whether Sanral did indeed attempt to get that consent – it initially failed to do so by the legal deadline – or what the response was if any, and no further documents were provided to OUTA, effectively a refusal.

Kakaza says that section 46 of PAIA allows for granting access to a record “if the disclosure of the record would reveal evidence of a substantial breach of the law or an imminent and serious public safety or environmental risk; and where the public interest in the disclosure clearly outweighs the harm contemplated in the section relied upon to refuse access”. This section overrides the restriction on commercially sensitive information in sections 36(1) and 37(1).

“OUTA therefore wishes to evaluate the legality of the abovementioned tender that is of public interest. However, OUTA will only be able to do so upon the production of the records referred to in its request,” says Kakaza.

“OUTA is of the view that Sanral as public body has an obligation to foster transparency and accountability. The documents requested by OUTA relate to a public tender that Sanral awarded Aqua Transport and any third party, who engages in business with any public body, does so with the full knowledge that once information is handed over to a public body, that information opens itself to public scrutiny and these are the fundamental values that are protected by our Constitution in terms of which transparency forms part of the core values of our democratic order.”

Why OUTA wants to see the AquaEXR contract

In September 2022, the directors of Aqua Transport and Plant Hire, one of the companies now forming the AquaEXR JV, were arrested on charges of fraud, theft and corruption relating to a 2012 tender with the KZN department of roads and transport (see here and here). In October 2023, Minister of Transport Sindisiwe Chikunga told parliament in a written reply that Sanral was legally compelled to award the tender to AquaEXR because it was the highest-scoring bidder, the Aqua directors were considered innocent until proven guilty, and Aqua was not blacklisted as a service provider on the National Treasury or Sanral databases (see here). The minister said if the directors were convicted then Sanral “reserves the right to terminate the contract”.

OUTA believes that the criminal charges against the Aqua directors should have ruled out the JV from being considered for the contract. Even if the contract is cancelled if the directors are convicted, it may be too late to stop the loss of payments on the contract.

OUTA notes that the Pretoria High Court last week overturned Transnet’s award of a tender to Aqua Transport (see here). In that case the court referred to “the common cause adverse findings against Aqua” and said that “the appointment of Aqua was so unreasonable that no reasonable person could have taken such a decision”.

“This is one of the reasons OUTA wants access to the information pertaining to the tender that SANRAL awarded to Aqua Transport, we want to check the rationality and reasons behind that decision,” says Kakaza.

The CETA refusal: The R24m contract with Grayson Reed

On 11 December 2023, OUTA submitted a request for information in terms of PAIA to the Construction Education and Training Authority.

“The CETA blatantly ignored OUTA’s PAIA requests which then lead to a deemed refusal and or dismissal,” says Kakaza.

The information OUTA requested from the CETA relates to a R24 million tender that it awarded on 22 June 2018 to a company called Grayson Reed for the provision of biometric system for learner attendance administration.

OUTA wishes to evaluate the legality of the agreement between CETA and Grayson Reed, which requires access to the requested documents.

Why OUTA wants to see the Grayson Reed contract

Grayson Reed is the same company that won a tender in November 2017 worth R162 million from the Services SETA for payment of stipends to learners and management of a biometric learner attendance monitoring system. In November 2018, OUTA investigated that tender and exposed serious maladministration and corruption at the Services SETA. The contract was eventually cancelled, although Grayson Reed was paid.

“Further investigations by OUTA during 2022 revealed a well-established network of individuals and companies who assisted each other in obtaining tenders not only at Services SETA but also at other SETAs and other organs falling under the Department of Higher Education, Science and Innovation,” says Kakaza.

A government culture of secrecy

The Information Regulator includes a PAIA report in its annual report.

This shows not only that public entities routinely refuse to disclose information requested but also that most of them – 75% – fail to comply with the requirement to provide the Information Regulator with statistics on these requests.

The Information Regulator annual report for 2022/23 (see here) notes that there were 80 556 requests for information in terms of PAIA that year to national government departments, provincial departments, municipalities, national and provincial government entities, universities and TVET colleges. Of those requests, only 46 833 (58%) were granted in full.

These statistics were based on 195 public bodies which complied with the requirement to provide the Information Regulator with this information, but they were only 25% of the departments and entities which should have provided this information.

A total of 291 complaints were lodged with the Information Regulator over the government refusals. There were 1 196 court actions filed to challenge these refusals and, of these, 1 030 (86%) were filed against provincial government departments.

The Information Regulator also noted that there were 40 974 requests for information to private bodies, of which 32 990 (81%) were granted in full. There were 71 complaints to the Information Regulator and 28 court applications challenging refusals.

The Information Regulator itself received seven requests for information in terms of PAIA, granted full access to three and refused four in full.

More information

A voicenote with comment by OUTA Legal Project Manager Asavela Kakaza in English is here.

A voicenote with comment by OUTA Executive Director, Advocate Stefanie Fick, in Afrikaans is here.

The OUTA complaint to the Information Regulator on Sanral is here and on the CETA is here.

OUTA is engaged in three legal challenges to Sanral over access to information on the toll concessionaire contracts. More on this is here.

More on OUTA’s work exposing corruption in the Services SETA and the Grayson Reed contract is here.

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