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Outa thwarted again in attempt to obtain toll road information from Sanral

‘The last-minute decision to oppose our PAIA application is nothing but a refusal to be transparent’ – Outa.
A high court order was granted against Sanral on Tuesday for the wasted costs of the court proceedings. Image: Shutterstock

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?

Read: Sanral is unable to meet its financing obligations

“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.

Read: Sanral ‘unable’ to comment on dodgy R40m payments by e-tolls collection company

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.

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COMMENTS   9

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South Africa has become a place where the rulers tap dance around the law while slowly benching the preferred judges of strictly come dancing. Guess who will be the winners come the season finale?

SANRAL is going to get its posterior handed to it, IMO.

The SCA already ruled (in Winelands) that SANRAL cannot not plead ‘commercial confidentiality’. The three-page lecture the SCA delivered on this topic and the related issue of media freedom was one of the highlights of the judgment.

The concessionaires are de facto extensions of SANRAL, so there is no reason why the the SCA’s finding should not apply to these appendages too.

Bottom line: road users are entitled to know what roads cost, and whether that cost represents value for money. If SANRAL won’t tell us, it suggests they have something to hide, and this is a fundamental problem with SOEs: they are undemocratic, because they move public functions into the ‘private’ sphere, where ‘confidentiality’ is claimed and democratic accountability excluded.

I don’t expect the ANC to listen to road users’ long-standing concerns about toll roads, but it is galling to see that the taxpayer must once again fund SANRAL’s untenable lawfare against the country’s citizens.

A absolute disgrace.

Go for it ! While the courts are still not 100% captured.

Love to know how SANRAL charges full Toll Fees while they have taken a freeway from two lanes down to one for repairs . A corrupt monopoly me thinks !

I have often thought the same thing especially on the N3. I believe that the N3 is over maintained as there is never a time without some or other resurfacing taking place. It seems that they start at one end and by the time that they finish it is time to start again.

Nope; I worked for one of the original concession holders and the concession was a licence to print money (and I think still is). The “SANRAL” (it may have been NYC or NRA then) approved repairs were ripped to pieces by the concession holders and only “lick and stick” maintenance done, and maybe that is all and only still being done.

Another killer though for roads is overloading which I believe was, and maybe still is, rife.

I agree with Honda. Not long after the N3 was built ( 2010 ), repairs had to be done on the South section of the N3. Counting the number of patches between Irene off ramp and OR Tambo Airport, I counted 112 patches where the road was repaired. The Northern way had virtually no road repairs. Different contractors ? And this was way back in 2018 already. On a recent trip from Mossel Bay to Port Owen on the West Coast, I saw less potholes on the entire trip compared to one street block in either Johannesburg, Ekurhuleni, Pretoria, Kimberley or Vanderbijl Park. Thank goodness we moved to Mossel Bay just before lockdown in March 2020.

30 year concession – interesting. So why is Grasmere toll plaza still there? I was a student when it was constructed then, 30 years have since passed long time ago.

End of comments.

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