Case Summary and Outcome

Jan George de Lange, a financial journalist for Media 24, requested information from Eskom Holdings Ltd, a South African supplier of electricity, regarding Eskom’s contracts with its affiliates. De Lange’s request sought disclosure about Eskom’s pricing formula, the start and end dates its supply contracts, and information about the signatories to Eskom’s main contracts. Although Eskom initially denied the request under the refusal grounds found in the Promotion of Access to Information Act 2000, the court determined that, because this information was germane to an ongoing energy debate, the public interest exception to the refusal grounds applied, and Eskom had to turn over the information.

Facts

Jan George de Lange, a financial journalist, and his employer, Media 24 Limited, requested information from Eskom Holdings Ltd (Eskom). The information requested related Eskom’s contracts with its affiliates for the supply of electricity, and it was requested under the Promotion of Access to Information Act 2000 (PAIA) (paras 1, 3). De Lange requested access to three sets of documents: 1) documents that showed the formula and/or means of price determination for Eskom’s supply of electricity; 2) documents that identified the signatories to the agreements between Eskom, BHP Billiton Plc Inc (Billiton), and its affiliates; and 3) documents showing the start and termination date for the supply contracts between Eskom, Billiton, and its affiliates (para 4). De Lange filed suit against Eskom, Billiton, Hillside Alumininium (Pty) Ltd (Hillside), Motraco de Transmisso Mozambique SARL (Motraco), and the Minister of Justice and Constitutional Development after Eskom refused his request for information (paras 52-56).

The request was not flat out refused, however; Eskom granted de Lange access to the signatories to their electricity, naming the electricity supply agreements as between Eskom and Hillside and between Eskom and Motraco (para 11). Eskom then refused to grant de Lange’s requests both for access to the pricing formula for the cost of the electricity supply and for the start and end dates of their written agreements. Eskom cited 36(1)(b) and (c) and 37(1)(a) of the PAIA as grounds for his refusal (para 11).

According to Eskom, the information sought contained “both general and specific commercial, financial and technical information of a highly confidential nature which [would] cause significant harm to the commercial and financial interest of BHP Billiton Group” (para 11). Additionally, Eskom argued that to disclose any of this information would put Eskom in breach of duty of confidence with Hillside and Motraco, and that the disclosure of such information would disadvantage BHP Billiton in commercial competition (para 11).

Decision Overview

The court opened its analysis by recognizing that the matters at issue have generated “considerable public interest” (para 14). Section 32 of the South African Constitution states that “[e]veryone has the right of access to (a) any information held by the state; and (b) any information that is held by another person and that is required for the exercise of any right” (para 28). The court acknowledged that this right of access to information has been consistently upheld so as to “subordinate the organs of the state to a new regimen of openness and fair dealing with the public,” and that the PAIA was passed to effectuate this right (paras 29, 30).

According to its own terms, as laid out in Section 9, the purpose of the PAIA is to give effect to the Constitution’s Section 32 guarantees “subject to justifiable limitations, including, but not limited to, limitations aimed a the reasonable protection of privacy, commercial confidentiality and effective, efficient and good governance…in a manner which balances that right with any other rights, including the rights in the Bill of Rights in Chapter 2 of the Constitution” (para 33). Section 11 of the PAIA states that, when dealing with public bodies, the party requesting the information does not have to explain why it wants information and is entitled to that information as a matter of right, unless there is an applicable ground for refusal, as set out in Chapter 4 of the PAIA (paras 34, 35). Under this framework, the court considered if any of the refusal grounds were applicable (para 36). However, even if there are applicable grounds for refusal, the disclosure of information can still be required or justified under section 46 of the PAIA, which provides “[d]espite any other provision of this Chapter, the information officer of a public body must grant a request for access to a record…if the public interest in the disclosure of the record clearly outweighs the harm contemplated in the provision in question” (paras 39, 40).

The refusal grounds permitted in the PAIA are as follows. Section 34 allows a public body to refuse requests for access to information “if its disclosure would involve the unreasonable disclosure of personal information about a third party” (para 65). Section 36 states that a request for access to information must be refused “if the record contains…(b) financial, commercial, scientific or technical information…of a third party, the disclosure of which would be likely to cause harm to the commercial or financial interests of that third party; or (c) information supplied in confidence by a third party the disclosure of which could reasonably be expected—(i) to put that third party at a disadvantage in contractual or other negotiations; or (ii) to prejudice that third party in commercial competition” (para 66). Section 37 says public bodies “must refuse a request for access to a record if the disclosure of the record would constitute an action for breach of duty of confidence owed to a third party” (para 67).

The court rejected the argument from Eskom, Billiton, and Hillside that the refusal ground in Section 34 of the PAIA allowed Eskom the right not to disclose the particulars of the signatories to its contracts (paras 74, 75). The argument that, should the information be made public, the signatories would be open to harassment or public attacks was, in the opinion of court, unsubstantiated (para 74). The court also found that the refusal to provide the duration of the agreements failed for the same reason (para 76). The court then turned to the last request—the pricing formula. Billiton and Hillside argued that their pricing structures with Eskom were confidential and that granting access to this information would lead to a “reasonable probability of harm” (para 79). The High Court found that Billiton proved that its reliance on PAIA to refuse to grant access to its pricing formulas was valid, stating that Billiton showed “that knowledge of its costs of production could enable its competitors to alter their commercial behavior to take advantage of their knowledge of Billiton’s position” (para 116).

However, in the next stage of analysis, the court looked to Section 46, which is the public interest override. Contextually, the court noted that South Africa had been experiencing power outages since 2008, and that de Lange’s assertion that the disclosure of the contracts between Eskom and its affiliates “could shed a light on the perceptions held that the contracts contribute towards insecurity of electricity supply.” The court also made not of the public’s overwhelming reliance on the dependability on electricity, especially in the rail and commuter services, where reliable electricity is a public safety matter. Thus, the court found “the disclosure of the records would reveal evidence of an imminent and serious public safety or environmental risk” (paras 147-152).

As such, the court found Section 46 of the PAIA required Eskom et al to turn over the requested information (para 154).