The long-standing attempts of the Organisation Undoing Tax Abuse (Outa) to obtain more transparency from the SA National Roads Agency (Sanral) about possible “excessive profits” being made by its long distance toll concessionaires has been thwarted again – for now.
This follows Sanral’s lawyers at the 11th hour indicating that the agency has now decided to oppose Outa’s request for information about its long distance toll concessionaires through a Promotion of Access to Information Act (PAIA) application to the North Gauteng High Court.
Advocate Stefanie Fick, executive director of Outa’s accountability division, said the application was scheduled to be heard on the unopposed court roll on Tuesday but Sanral’s lawyers indicated very late on Monday that Sanral had now decided to oppose the request and application.
Failure to give notice
Sanral failed to give notice of its intention to oppose Outa’s application and to submit an answering affidavit despite Sanral GM for marketing and communications Vusi Mona informing Moneyweb in July 2020 that Sanral would be defending the court application.
Read: Outa takes Sanral to court (Jul 2020)
Mona said at the time that in terms of PAIA, Sanral is obliged to protect the rights of other parties, such as N3 Toll Concession (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 (N3TC), Sanral will have no other choice but to defend such an application in accordance with the law,” Mona said.
Fick said on Tuesday that Outa lodged the high court application against Sanral after two years of failed attempts to get information on the three national concessionaire routes:
- The N1 between Pretoria and Bela-Bela and the N4 from Pretoria to the Botswana border operated by Bakwena;
- The N4 stretching from Pretoria to the Mozambique border operated by Trans African Concessions; and
- The N3 from Pretoria to Durban operated by N3TC.
A high court order was granted against Sanral on Tuesday for the wasted costs of the court proceedings.
Sanral was also ordered to file its answering affidavit and condonation application within the next 15 days.
A list of questions was emailed to Sanral on Tuesday.
Sanral however indicated through its communication company that it was unable to meet the deadline to provide a response.
Shocking, a waste, an abuse
Fick 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,” she said.
Fick added it is “infuriating” and also a “sad day” when an 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 SOEs 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.”
Outa legal project manager Brendan Slade said the organisation 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,” he said.
“To date, Sanral has failed to furnish Outa with this information, warranting Outa to approach the court.”
‘Why all the secrecy?’
Outa maintains that the information withheld by Sanral and the concessionaires is in the public interest and 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,” it says.
“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?” it asked.
Billions and millions
Transport Minister Fikile Mbalula confirmed recently in parliament in response to a question that N3TC generated just over R2 billion through toll plazas operated in 2019 while Sanral generated R270 million for Sanral plazas.
Outa queried 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,” it said.
Slade added that Outa believes it is in the public interest that Sanral is transparent about the “build-operate-transfer” contracts with the three concessionaires.
Slade said the contracts – also known as private-public partnerships (PPPs) – relate to road construction, maintenance and revenue collection on the routes.
He said the contracts entail that Sanral transfers road assets to the concessionaires for a period of 30 years, during which time 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, he said.
Slade said in addition to improving the road infrastructure, the concessionaires also manage toll plazas and off ramps and collect the toll fees levied.