As a consequence Sanral must file heads of argument within three days, explaining why it has been refusing for more than three years to hand over the N3TC toll concession contracts and financials to OUTA.
The Pretoria High Court has ruled in favour of OUTA, compelling Sanral to file its heads of argument in response to OUTA’s request for access to the N3TC toll concession contracts and all financial records on the 30-year concession.
If Sanral fails to comply, OUTA will consider our legal options, but we are hopeful that Sanral adheres to the court order so that the case may proceed.
“Transparency is very important in a democratic society. In terms of our Constitution everyone has the right of access to information held by the state. Although this is not an absolute right, civil society has a right to know what Sanral is doing with South Africa’s toll revenue. Unfortunately, South Africa has too often seen the result of government and its entities operating behind closed doors. Transparency is even more important when there is a trust deficit and civil society can no longer trust the state to act in the best interest of its citizens,” says Advocate Stefanie Fick, OUTA Executive Director.
Brendan Slade, OUTA Legal Project Manager, says it has become routine for civil society to be obliged to resort to legal action to force government to comply with court rules in the face of government and its entities attempting to avoid accountability and transparency.
Slade points out that OUTA’s application to compel Sanral to file heads of argument in the main application was filed in June 2022. “We are now in February 2023, meaning that Sanral had ample time to comply and file its heads of argument but it didn’t, which is why we proceeded with the application to compel. There is no valid reason for Sanral’s delay but it looks like Stalingrad tactics.”
Slade says such behaviour encourages a culture of contempt for the rule of law.
“Government seems to regard court rules – and some legislation – as mere suggestions,” says Slade. “Not only does this create an environment of distrust in government, but it also creates the false illusion that if government can get away with it, ordinary citizens could also try this,” says Slade.
“Whether non-compliance with court rules is due to malice, hidden agendas or simply ignorance is completely irrelevant in the greater scheme of things. The point is that court rules are not being adhered to and it sends out a very bad message to the public at large, signalling that the rule of law means little to government litigants. Not only is a culture of impunity created but also a culture of wasting taxpayers’ money. For every postponement, delay, filing of court papers, consultation and so on, someone has to foot the bill. In the case of government litigants, that someone is the taxpayer.”
OUTA’s case against Sanral on N3TC
OUTA’s case revolves around Sanral’s refusal, supported by N3TC, to provide OUTA with the records. OUTA wants to see the records to find out how much profit N3TC is making off the contract, so put in a formal request through the Promotion of Access to Information Act in July 2019.
It is OUTA’s view that public-private partnerships have their place and can offer immense value in the state’s infrastructure development and maintenance. However, the value of returns for the private companies should be transparent and publicly available.
“For several years now, we have been writing to Sanral and the three major toll road concessionaires – N3TC, Bakwena and TRAC – asking for the information relating to these contracts, but to no avail. We have properly completed all requests in terms of the Promotion of Access to Information Act but we have had no joy, so we approached the courts to ask them to compel Sanral to provide us with the information,” says Fick.
“Unfortunately, the run-around didn’t stop there. After launching the application, we had to force SANRAL to file something as elementary as heads of argument. It is extremely frustrating for civil society to be given the run-around and have to take years to obtain information that should be made freely available to the public.”
The court also expressed its disappointment in Sanral’s failure by giving a cost order on attorney-and-client scale.
N3TC manages the N3 toll road between Gauteng and KwaZulu-Natal. The toll tariff (from 1 March 2022) currently ranges from R13.50 to R296. The total trip from Johannesburg to Durban on the main line costs R286.50 for cars and R1 050.00 for heavy trucks.
In November 2021, the Pretoria High Court ordered Sanral to provide OUTA with the full contract and financial records of the toll concession with TRAC (see here). However, instead of providing the records Sanral filed a rescission application seeking to overturn the judgment. At the same time, OUTA filed an application calling for Sanral to be found in contempt of court for failing to hand over the records. This matter is due in court on 13 March.
The action against Sanral over access to the Bakwena records is also ongoing.
