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OUTA

Toll road concessionaires

OUTA wants to know how much SANRAL’s toll road operators are collecting, how much they hand over to SANRAL and what profits they make. OUTA has submitted three formal requests for information to SANRAL, using the Promotion of Access to Information Act (PAIA), to get this information. All three requests were refused. OUTA is challenging all the refusals in court.

 

The most common form of private sector participation in roads is the concession. This occurs when a private entity builds, operates and transfers a road for a period between twenty and thirty years. The government pays the private entity for its service through toll payments from road users.

In South Africa, there are currently three routes operated by concessionaires. 

These routes are:

• N3 between Heidelberg, Gauteng and KZN; 

• N4 Maputo Development Corridor and the

• N4 Platinum Highway

The concessionaires responsible for the management of these roads are:

• N3 Toll Concession – N3 between Gauteng, Heidelberg and KZN

• Trans African Concessions - N4 between Pretoria and Maputo in Mozambique 

• Bakwena Platinum Corridor Concessionaire – N4 Platinum Highway    

OUTA is interested in the profit projections for the remaining years on the concession contracts.  SANRAL has received a fixed amount from the tolls collected each year, whilst toll tariffs have increased by approximately 80% in the last 10 years, indicating that the concessionaires could be benefitting from excessive profits. 

OUTA submitted applications to SANRAL in terms of the Promotion of Access to Information Act (PAIA), requesting the contracts between SANRAL and the three concessionaires, N3TC, Trac and Bakwena.  SANRAL has ignored OUTA’s requests, effectively refusing the requests.  OUTA believes that the lack of transparency regarding the projected concessionaire profits for the remaining years of the contracts is suspicious, and has therefore lodged legal action challenging the refusals. By the end of 2022, these matters were still ongoing.


SANRAL – N3 Toll Concession (N3TC)
Pretoria High Court case 32095/2020

  • 30 July 2019: OUTA submits its request for access to information (PAIA) to SANRAL. The list of information request is here. 

  • 17 September 2019: OUTA sends SANRAL a courtesy email as no response had been received. OUTA also gave SANRAL until 20 September 2019 to respond.

  • 25 September 2019: Still no answer from SANRAL. OUTA sends another follow up email.

  • 3 November 2019: SANRAL is still silent. OUTA, through its attorneys, lodges an internal appeal against SANRAL’s refusal (deemed to have been refused due to no answer). Although this process is not applicable to SANRAL as later advised by our attorneys, OUTA nevertheless filed this internal appeal in good faith.

  • 17 December 2019: SANRAL remains mute. OUTA informs SANRAL that if no information is received by 17 January 2020, we will approach the court.

  • 17 – 30 March 2020: Country enters hard lock down. Courts in disarray.

  • 6 June 2020: OUTA, through its attorneys, as a last resort approaches SANRAL to provide us with the information. OUTA indulges SANRAL to respond by 19 June 2020. No response.

  • 22 July 2020: OUTA files its formal court application and sets matter on the roll for 7 September 2020. The application is here (part 1) and here (part 2). The matter was subsequently removed from the roll.

  • 19 October 2020: OUTA allocated date of 5 May 2021 as new unopposed date for application.

  • 21 December 2020: OUTA files supplementary affidavit.

  • 16 March 2021: OUTA files Rule 28 amendment – to amend its notice of motion. No opposition received from SANRAL.

  • 26 March 2021: SANRAL alleges they never received OUTA’s application. OUTA’s attorneys confirm that the application was served by the sheriff on 20 August 2020 and gives SANRAL until 20 April 2021 to reconsider and/or file any opposition.

  • 20 April 2021: OUTA’s attorneys confirm no response received from SANRAL or their attorneys. OUTA complied with all directives for the matter to be finally enrolled for 5 May 2021.

  • 4 May 2021: OUTA was informed that SANRAL wishes to oppose the court application that was to be heard on 5 May 2021. This opposition came after all relevant court time periods have expired. Accordingly, and on the day of the hearing, the court ordered that SANRAL has to pay OUTA’s wasted costs on a party and party scale. The court further ordered SANRAL to deliver their answering affidavit(s), together with a condonation application for the late filing of their opposition within 15 days (by 26 May 2021).

  • 31 May 2021: SANRAL filed it answering affidavit in line with the court order granted dated 5 May 2021.

  • 14 June 2021: OUTA filed its replying’s affidavit in response to SANRAL’s answering affidavit.

  • 17 February 2022: N3TC was successfully joined to the proceedings. They now have until 1 March 2022 to oppose OUTA’s application and thereafter must file their answering affidavit.

  • 28 March 2022: N3TC files its answering affidavit to OUTA’s application. See the filing notice here and answering affidavit here.

  • 11 April 2022: OUTA files its replying affidavit to N3TC’s answering affidavit. See the filing notice and replying affidavit here and here respectively

  • 19 May 2022: OUTA files its supplementary affidavit, affirming that certain documentation had been agreed to be disclosed by N3TC, though same may be obtained from SANRAL directly. See the relevant filing notice here, the supplementary affidavit here, as well as all the relevant annexures here annexure 1, annexure 2, annexure 3, annexure 4 and annexure 5.

  • 31 May 2022: OUTA files its heads of argument. See here.

  • 20 June 2022: The hearing is set down for 8 August 2022. The first, fourth and fifth respondents (SANRAL, the Minister of Transport and the SANRAL CEO) are to file their heads of argument before then. However, the court subsequently removed the case from the roll and a new date is still awaited.

  • 11 October 2022: OUTA obtains a motion date for the hearing of its application to compel SANRAL to file its heads of argument for 31 January 2023. A copy of the notice of set down is here.

  • 31 January 2023: OUTA obtains a court order from the Pretoria High Court ordering Sanral to file heads of argument in the main challenge within three days. The order is here.

  • 6 February 2023: Sanral files heads of argument, as ordered by the court on 31 January. See here.

  • 10 October 2023: OUTA's application is heard in the Pretoria High Court.

  • 14 November 2023: The Pretoria High Court dismisses OUTA's application. The judgment is here. See OUTA comment on this here.


 SANRAL – BAKWENA PLATINUM CORRIDOR CONCESSIONAIRE
Pretoria High Court case 7955/2021

  • 8 June 2020: OUTA submits a request for access to information in terms of PAIA to SANRAL, in which OUTA requests records relating to the concession agreement between SANRAL and Bakwena. The list of documents requested is here.

  • SANRAL fails to provide OUTA with an adequate response, save for a letter forwarded to OUTA, dated 2016. However, the PAIA request referred to in such letter is not the PAIA request that OUTA submitted on 8 June 2020, but relates to a request OUTA made in 2016.

  • 6 August 2020: OUTA lodges its internal appeal, addressing among other things, that SANRAL failed to properly institute the relevant third party proceedings as contemplated in PAIA. SANRAL also failed to properly set out its grounds for refusal.

  • SANRAL fails to disclose the records so requested by OUTA and fails to address OUTA’s internal appeal.

  • 16 February 2021: OUTA’s court application is issued in the High Court, Gauteng Division (Pretoria) on 16 February and served on SANRAL on 24 February. SANRAL has until 18 March 2021 to oppose OUTA’s application for the disclosure of the records in question. The court application is here. OUTA’s application against SANRAL aims to set aside their refusal to grant OUTA access to the records requested and compel SANRAL to disclose it.

  • The matter is placed on the court roll for 2 November 2021.

  • 5 May 2021: SANRAL serves its notice of intention to oppose our application.

  • 25 June 2021: Bakwena serves OUTA’s attorneys with an application to intervene in the pending application. Bakwena argues that they should be allowed to be joined to the proceedings as the information OUTA requested relates to them.

  • 9 July 2021: OUTA files a notice in terms of Rule 28(1), adding Bakwena as a party to the proceedings.

  • 4 April 2022: The matter is due in court to hear the Bakwena joinder.

  • 26 May 2022: Bakwena is granted leave to intervene in the proceedings and has until 24 June 2022 to file an answering affidavit. The order is here.

  • 6 June 2022: Bakwena (now joined to the matter) files notice of its intention to oppose OUTA's application. The notice is here.

  • 24 June 2022: Bakwena failed to deliver its answering affidavit in line with the court order granted on 26 May 2022. This affidavit is still not filed by October 2022.

  • 1 July 2022: Bakwena files an application in terms of Rule 6(5)(d)(iii), calling for the dismissal of OUTA's application. This application is here.

  • 15 July 2022: OUTA files notice of intention to oppose Bakwena's Rule 6(5)(d)(iii) application. OUTA's notice is here.

  •          29 August 2022: Bakwena applies to set down Rule 6 application on unopposed roll, and the date is set down as 2 December 2022.

    ·        31 August 2022: OUTA files a notice in terms of Rule 30 and 30A, objecting to setting down the Bakwena interlocutory application (the Rule 6 application) on the unopposed roll, as it is neither unopposed nor appropriate to hear before papers in the main application have been filed. A copy of this notice is here.

    ·         5 September 2022: OUTA files final notice of set down for the application to compel SANRAL to file its answering affidavit in the main application. The date allocated on the role is 2 December 2022. A copy of the notice can be found here.

    ·         20 September 2022: OUTA files its Rule 30 application, calling for setting aside of Bakwena’s Rule 6 application and its enrolment on the unopposed roll. A copy of the notice of motion is here, the founding affidavit is here and annexures are here.

  • 26 October 2022: OUTA files a notice of removal, removing the unopposed motion to compel SANRAL to deliver its answering affidavit (originally enrolled for 2 December 2022). A copy of the notice of removal is here. The matter was removed from the roll, pending the outcome of OUTA's Rule 30 & 30A application, which must be dealt with before any other litigation may proceed.

  • 8 November 2022: Bakwena files its answering affidavit to the Rule 30 & Rule 30A application. A copy is here.

  • 22 November 2022: OUTA files its replying affidavit to Bakwena's answering affidavit. A copy is here and the annexures are here and here.

  • 6 March 2023: OUTA files its notice of set down for the opposed motion roll on 26 April 2023. A copy of the notice is here.

  • 9 May 2023: Judgment is given on OUTA's Rule 30 and 30 application which was heard on 26 April. The judgment is here.

  • 22 June 2023: SANRAL serves its answering affidavit. A copy is here.

  • 27 June 2023: Bakwena serves its answering affidavit. A copy is here.

  • 18 August 2023: OUTA files its replying affidavit. A copy is here.


SANRAL – Trans African Concessions (TRAC) 

Pretoria High Court case 7954/2021

  • 25 August 2020: OUTA submits a request for access to information in terms of PAIA to SANRAL, which OUTA requested records relating to the concession agreement between SANRAL and TRAC. The list of documents requested is here.  SANRAL fails to provide OUTA with a response.

  • 5 October 2020: OUTA lodges an internal appeal, addressing, among other things, that SANRAL failed to properly institute the relevant third party proceedings as contemplated in PAIA. SANRAL also failed to properly set out its grounds for refusal.

  • SANRAL fails to disclose the records so requested by OUTA and has failed to address OUTA’s internal appeal, refusing the request by default.

  • 16 February 2021: OUTA’s court application is issued in the Pretoria High Court on 16 February and served on SANRAL on 24 February. SANRAL has until 18 March 2021 to oppose OUTA’s application for the disclosure of the records in question. The application is here. OUTA’s application against SANRAL aims to set aside their refusal to grant OUTA access to the records requested and compel SANRAL to disclose it.

  • The matter has been placed on the court roll for 1 November 2021, but due to the local government election was moved to 5 November 2021.

  • 15 November 2021: The Pretoria High Court orders SANRAL to provide OUTA with the information requested, within 15 court days of the order being served on SANRAL. The order is here.

  • 19 November 2021: The court order is served on SANRAL by the sheriff. SANRAL has until 10 December 2021 to furnish us with the records.

  • 24 January 2022: OUTA files an application with the Pretoria High Court, calling on the court to order SANRAL to be declared in contempt of court, to comply and hand over the information, and to hand SANRAL CEO Skhumbuzo Macozoma a 30-day suspended sentence to force compliance. The notice of motion and founding affidavit are here.

  • 28 January 2022: SANRAL files its application for the rescission of OUTA’s judgment as well as its answer to OUTA’s main application.

  • 25 February 2022: OUTA files its notice to oppose SANRAL’s rescission application. OUTA now has until 15 March 2022 to file its opposing papers.

  • 16 March 2022: OUTA files its answering affidavit to SANRAL’s rescission application as well as its  replying affidavit in the contempt of court proceedings. Read the filing notice contempt and rescission affidavits here.

  • 4 May 2022: OUTA files its heads of argument and chronology in both the contempt application (see here and the chronology here) as well as the rescission application (see here).

  • 9 June 2022: SANRAL files its heads of argument. A copy is here.

  • 15 July 2022: OUTA files a supplementary affidavit to its application. This affidavit is here and the annexures are here.

  • July 2022: OUTA files an application to compel SANRAL to file its heads of argument.

  • 26 October 2022: The hearing for the rescission and contempt application is set down for 13 March 2023.

  • 14 November 2022: SANRAL files a supplementary affidavit. A copy is here.

  • 18 November 2022: OUTA files supplementary heads of argument. A copy is here. 

  • 13 March 2023: The matter was in court, for argument on two aspects: Sanral’s rescission application to overturn the default judgment of 15 November 2021 which ordered Sanral to provide OUTA with the documents; and OUTA’s contempt of court application against Sanral for failing to comply with that judgment. A court order was granted on the following terms: OUTA withdraws the contempt application; the default judgment of 15 November 2021 was rescinded; TRAC was granted leave to join the main application and must file papers on or before 13 April 2023. The order is here.

  • 17 April 2023: TRAC serves its notice in terms of Rule 6(5)(d)(iii), an action to raise a point of law. TRAC argues amongst other that OUTA's cause of action is lacking and that OUTA's main application should thus be set aside. The notice is here.

  • 4 May 2023: OUTA serves a notice in terms of Rule 30 and 30A. The notice is here.

  • 19 June 2023: TRAC formally withdraws its application in terms of Rule 6(5)(d)(iii). A copy of the withdrawal notice is here.

  • 18 July 2023: OUTA files a notice of set down on the unopposed motion roll for 1 December 2023, after the respondents failed to file an answering affidavit. The notice is here.

  • 28 November 2023: OUTA files a notice of removal for the unopposed motion set down for 1 December 2023. The notice is here.  


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