Sanral and the Construction SETA are keeping contracts with two questionable companies secret. OUTA has filed complaints against them with the Information Regulator for refusing to provide us with information that is in the public interest. 

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 OUTA’s request.

Asavela Kakaza, OUTA Legal Project Manager, says section 11 of PAIA imposes a duty on a public body to give access to information when so requested, something which is further supported by Section 32 of the Constitution.  “Section 11 of PAIA makes it clear that, under our law, disclosure of information is the rule and exemption from disclosure is the exception,” Kakaza explains. 

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. This was for capacity improvements worth R4,7 billion on the section of the N3 in KZN from Westville viaduct to Paradise Valley interchange.  

On 20 October, Sanral partially granted the request, providing access to some documents but refusing access to the rest, citing lack of consent from the third party (Aqua Transport) and “commercially sensitive information” as excuses. According to OUTA, the legality of the tender is of public interest, and Sanral as public body has an obligation to foster transparency and accountability. “The documents requested by OUTA relate to a public tender, 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,” says Kakaza. 

Why does OUTA want 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 recently 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 – we want to check the rationality and reasons behind Sanral’s decision to award this tender to Aqua Transport,” says Kakaza. 

The CETA refusal: The R24m contract with Grayson Reed

On 11 December 2023 OUTA submitted a PAIA request to the Construction Education and Training Authority (CETA), relating to a R24 million tender it awarded on 22 June 2018 to a company called Grayson Reed. This was for the provision of biometric systems for learner attendance administration. OUTA wants to evaluate the legality of this agreement between CETA and Grayson Reed. However, CETA blatantly ignored OUTA’s request. 

Grayson Reed is the same company that won a tender worth R162 million in November 2017 from the Services SETA – this time 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. 

Secrecy, it seems, has become a government culture. 

The Information Regulator includes a PAIA report in its annual report which 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 representing only 25% of the total departments and entities obligated to do so.

A total of 291 complaints were lodged with the Information Regulator regarding government refusals. Out of these, 1 196 court actions were filed to challenge these refusals, with 1 030 (86%) directed at provincial government departments.

The Information Regulator also noted that there were 40 974 requests for information made to private bodies, with 32 990 (81%) being fully granted. Additionally, 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:

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.