South Africa’s state power utility Eskom has been ordered by the country’s second-highest court to hand over its coal, diesel and transport procurement contracts to lobby group AfriForum, ending a four-year legal battle and setting a precedent that could compel all state-owned enterprises to open their books on procurement.
The Supreme Court of Appeal in Bloemfontein dismissed Eskom’s appeal on Monday after a hearing in February, upholding an earlier Gauteng High Court order directing the utility to provide AfriForum with access to the contracts. The ruling has broad implications for all state organs, with legal experts warning that the days of citing commercial sensitivity as a blanket shield against disclosure are over.
AfriForum’s legal campaign began in June 2022, when the organisation used the Promotion of Access to Information Act to request Eskom’s electricity supply contracts with neighbouring countries, as well as its coal, diesel and transport procurement contracts. Eskom released the cross-border electricity agreements but withheld the coal and diesel contracts, citing commercial sensitivity. AfriForum challenged that refusal in the Pretoria High Court and won in 2024, with the court finding that Eskom’s grounds for refusing access were insufficient and without merit. Eskom then escalated the matter to the Supreme Court of Appeal, which has now rejected its case a second time.
According to Eskom’s own statement, the utility is studying the judgment in consultation with its attorneys before deciding how to proceed — leaving open the possibility of a further appeal to the Constitutional Court, which would be the last available avenue. The ruling covers all active contracts relating to the purchase, transportation and distribution of coal and diesel, as well as the utility’s unredacted electricity supply agreements with neighbouring countries.
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The court found that the right of access to information held by a public body is entrenched in the Constitution, and that Eskom’s claim of commercial sensitivity failed to meet the legal threshold required under the Promotion of Access to Information Act. The SCA held that refusals must be substantiated on the specific facts rather than through generic assertions of harm, and that the standard for withholding such information is considerably higher than Eskom had argued. Writing for the court, Judge Elizabeth Baartman concluded that the public, in whose interest Eskom concludes these contracts, has a constitutional right to access them, and that the grounds advanced to deny that access did not meet the required legal test.
The financial scale of what will now be disclosed is considerable. Eskom procures more than 100 million tonnes of coal annually, making it one of the utility’s single largest expenditure items. AfriForum’s manager of local government affairs, Morné Mostert, said the ruling would finally make it possible to determine whether the contracts are market-related and legally concluded — a question that has gained urgency given the documented procurement irregularities at Eskom, the findings of the Zondo Commission into state capture, and the control deficiencies identified in the utility’s own financial statements.
AfriForum is assembling a team of experts to analyse the contracts once they are released, assessing whether the terms and pricing reflect genuine market conditions. Legal experts have cautioned that the ruling will also apply to all state-owned enterprises, raising the standard across the board and requiring information officers to exercise substantive rather than procedural judgment when evaluating access requests. Wayne Duvenage, chief executive of the Organisation Undoing Tax Abuse, said a monopoly utility such as Eskom has no legitimate commercial interest in withholding contracts from the public it serves. The ruling lands at a delicate moment for Eskom, which is navigating a fragile operational recovery from years of load shedding while facing renewed scrutiny over its coal supply chain amid a projected fuel price surge driven by the Middle East conflict.
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