OUTA takes SANRAL to court over national toll concessions
Court proceedings for a request for access to information (PAIA) by The Organisation Undoing Tax Abuse (OUTA) against the South African National Roads Agency (SANRAL), was supposed to be heard on the unopposed roll in the Pretoria court today. However, SANRAL’s lawyers indicated very late yesterday that they have now decided to oppose the request.
OUTA took SANRAL to court after two years of failed attempts to get information on the three national concessionaire routes (N1, N3 and N4) operated by Bakwena, Trans African Concessions (TRAC) and N3 Toll Concession (Pty) Ltd (N3TC).
According to Brendan Slade, legal project manager at OUTA, the organisation believes it is in the public interest that SANRAL is transparent about the “build-operate-transfer” contracts with the three concessionaires. The contracts – also known as private-public partnerships (PPP’s) – relates to road construction, maintenance and revenue collection on the routes.
The contracts entail that SANRAL transfers road assets to the concessionaires for a period of 30 years, during which the concessionaires are responsible for road maintenance, construction and upgrade projects to improve road infrastructure. Upon completion of these projects, the roads are transferred back to SANRAL, purportedly in an upgraded state.
In addition to improving the road infrastructure, the concessionaires also manage toll plazas and off ramps and collect the toll fees levied.
The three concessionaires in question are Bakwena, Trans African Concessions (TRAC) and the N3 Toll Concession (Pty) Ltd (N3TC). Bakwena operates part of the N1 between Pretoria and Bela-Bela as well as the N4 from Pretoria through to the Botswana border, while TRAC operates the N4 stretching from Pretoria to the Mozambique border. N3TC runs the N3 from Pretoria to Durban.
According to Slade, OUTA first submitted a request for access to information (PAIA) to SANRAL in July 2019. “We requested information that includes copies of all annexures and addenda relating to the concession contracts and complete financial statements of the concessionaires for each fiscal year from 1999 to present. To date, SANRAL has failed to furnish OUTA with this information, warranting OUTA to approach the court.”
OUTA says that the information withheld by SANRAL and the concessionaires is in the public interest, and that there is no justification for SANRAL to withhold it. “Without the information we seek, OUTA has no way of knowing if the private concessionaires are collecting excessive amounts of revenue in toll fees at SANRAL’s and taxpayers’ expense. Transparency is crucial – while the absence thereof leaves more questions than answers. If these concessionaires are collecting profits in proportion to the work rendered, meaning that there is nothing untoward about the money they generate, why all the secrecy?”
When recently asked in Parliament about the fees generated by the N3TC, Minister Fikile Mbalula confirmed that they generated just over R2 billion through toll plazas operated in 2019, while SANRAL generated R270 million for SANRAL plazas. “What percentage of N3TC’s collections is paid over to SANRAL, we don’t know, but we suspect massive profits by N3TC. The information we request will place us in a better position to determine this.”
Adv Stefanie Fick, Executive Director of OUTA’s Accountability Division, said it is shocking that SANRAL once again chooses not to share information with the public. “The last minute decision to oppose our PAIA application is nothing but a refusal to be transparent. Not only is it a waste of the court’s time and an abuse of the system, but this type of Stalingrad litigation is once again costing the taxpayer money, since SANRAL is a state owned enterprise (SOE) funded with our taxes.”
Fick says it is “infuriating” and also a “sad day” when a SOE again choses legal action over transparency, especially since government is promising daily that they are serious about rooting out corruption. “One of the reasons State Capture happened, is because of a lack of transparency. When will government and SOE’s realise that they can’t be in a constant battle with citizens and civil society when it comes to transparency? If SANRAL has nothing to hide, why not share the information with us? Taxpayers have a right to see the terms and conditions of these contracts, and OUTA will keep on fighting for total transparency on behalf of South Africans.”
The court granted an order against SANRAL for wasted costs. SANRAL was ordered to file their answering affidavit and condonation application within 15 days .
Voicenote by OUTA's Adv. Stefanie Fick here.