The Organisation Undoing Tax Abuse (Outa) has scored a significant victory in its long-standing attempts to obtain more transparency from the SA National Roads Agency (Sanral) about possible “excessive profits” being made by Sanral’s long distance toll concessionaires.
This follows Judge J van der Schyff in the North Gauteng High Court setting aside the Sanral and former Sanral CEO Skhumbuzo Macozoma refusal of Outa’s request for information through a Promotion of Access to Information Act (PAIA) application about Trans African Concessions (TRAC), one of Sanral’s long distance toll concessionaires.
Van der Schyff directed Sanral to provide Outa with the requested records within 15 days of the order being served on the agency.
Sanral was also ordered to pay the costs of the application.
TRAC operates the toll concession on the N4 stretching from Pretoria to the Mozambique border.
Additional court applications
Outa has also lodged almost identical high court applications for information related to N3 Toll Concession (N3TC) and Bakwena.
N3TC operates the toll concession on the N3 from Pretoria to Durban and Bakwena the concession on the N1 between Pretoria and Bela-Bela and the N4 from Pretoria to the Botswana border.
Outa’s application related to TRAC was unopposed.
Advocate Stefanie Fick, executive director of Outa’s accountability division, said on Monday Outa will probably serve the order on Sanral Tuesday (November 16) and the agency will then have 15 days to provide it with the information requested.
“Sanral can delay this [through court processes] but cannot appeal the judgment and order because they did not oppose the application,” she said.
Sanral engineering executive Louw Kannemeyer said Sanral notes the decision by the High Court and will be guided by its legal team in this regard.
Fick added that Outa served the PAIA application on Sanral because it has the information it wants but N3TC and Bakwena disagreed and applied to intervene in those applications.
She said N3TC and Bakwena have been added as respondents in those two court applications, which still have to be heard.
Sanral ‘obliged to protect the rights of other parties’
Sanral GM for marketing and communications Vusi Mona told Moneyweb in July 2020 that Sanral will be defending the court application against N3TC.
Mona said at the time that in terms of PAIA, Sanral is obliged to protect the rights of other parties, such as N3TC.
“In this instance, a mandatory protection is afforded in terms of Section 36 of PAIA to protect commercial information of third parties [N3TC].
“As Section 36 is a mandatory obligation set upon Sanral to protect the commercial information of third parties, Sanral will have no other choice but to defend such an application in accordance with the law,” Mona said.
In an affidavit in support of Outa in the TRAC application, Fick stressed that Outa is a civil action organisation that aims to hold the government to account by challenging the abuse of authority, challenging irrationality and legislation.
Fick said Outa also engaged with the community and authorities in resolving issues about administration and service delivery within all spheres of government.
The R7bn loan
Commenting on the factual background to the application, Fick said Sanral received a loan of R7 billion from the Brics National Development Bank (NDB), which is payable over a period of 15 years.
Fick said the purpose of the loan is unknown.
However, Fick said it is reported that the purpose of the loan is both maintenance and construction of roads.
She said it was also reported that the loan facility would be used for new projects relating to the existing tolls as per Sanral’s project plan.
Fick said Outa enquired about the purpose of the loan but Sanral refused to disclose the details of the terms.
She said all that Sanral disclosed concerning the loan is that it is a sovereign loan and enjoys the best interest rates offered by the NDB.
“Outa is concerned that Sanral has taken out another R7 billion loan, thereby entrenching itself into more debt with lending institutions,” said Fick.
“More debt will eventually negatively affect the ailing economy of the country and may lead to increased taxes and thus negatively [impact] the lives of ordinary taxpayers.
“Since the loan involves the use of public finances, Sanral, as a state organ, is obliged to be transparent with public finances.
“Outa wants to establish whether this loan was used to further fund the concessionaire agreements,” she said.
Fick added that it is important for Outa and it will be in the best interest of the public for Sanral to be transparent on the purposes of the loan.
For instance, Outa needs to know whether loan amounts were allocated to the concessionaire tolled routes – N3TC, Bakwena and TRAC, she said.
Fick stressed that these funds should not be allocated to the concessionaire toll roads because these toll roads are self-funding.
“To the best of Outa’s knowledge, funding for toll roads comes from the toll collection of these road networks and, as such, Outa would like to establish whether the above mentioned loan is going towards the GFIP [Gauteng Freeway Improvement Project] bonds (e-tolled roads) or other Sanral managed toll roads that are supposed to be self-funding,” she said.
Fick added that irrespective of whether the loan had been allocated to a specific concessionaire, Outa intends to conduct an analysis of whether the funding generated by that concessionaire “is in excess to the funds required to maintain the toll road”.
“It is thus in the public interest that this information should be disclosed.”