In Organisation Undoing Tax Abuse v South African National Roads Agency, known as ‘OUTA’ and ‘SANRAL’ respectively, the court upheld SANRAL’s refusal to disclose sensitive commercial information, citing PAIA protections.

Who should care about this judgment and why?

  • Public administrators because they need to understand the limits of information disclosure under PAIA.
  • Civil society organisations because they have to recognise the requirements to successfully challenge the non-disclosure of information on public interest grounds.

What could you do about it?

  • Read the full judgment by downloading it.
  • Access other relevant PAIA judgments by joining the Michalsons Access to Information programme.

Our insights on the judgment

Section 36(1)(b) and (c) of PAIA protect third-party information that, if disclosed, would likely harm their commercial or financial interests or was provided in confidence and could disadvantage them in negotiations or competition.

Section 46 provides a public interest override, mandating disclosure if the information reveals substantial legal contravention, imminent public safety risk, or if public interest outweighs the harm.

Digest in OUTA v SANRAL

The case revolves around OUTA’s request for records from SANRAL under PAIA. OUTA aimed to evaluate the legality of an agreement with N3 Toll Concession (N3TC). SANRAL refused, citing Sections 36(1)(b) and (c) of PAIA. These sections mandate refusal if disclosure would harm a third party’s interests or if the information was supplied in confidence.

OUTA requested access to records from SANRAL concerning its contract with N3TC. SANRAL refused, citing the confidential nature of the information and potential harm to N3TC’s competitive position. OUTA argued the information was necessary to assess the legality of the agreement and invoke the public interest override under Section 46 of PAIA.

The Court’s decision

The court upheld SANRAL’s refusal, noting that the information in question fell squarely within the protections of Section 36. The court found no substantial evidence that the disclosure would reveal legal contraventions or public safety risks. Additionally, OUTA failed to demonstrate that the public interest in disclosure clearly outweighed the potential harm to N3TC. The court emphasized that making a profit within a lawful tender process is not grounds for mandatory disclosure under PAIA.

Reasons for the Court’s Decision:

  • Protected information: The court confirmed that the records contained sensitive commercial and financial information protected under Section 36 of PAIA.
  • Lack of evidence: OUTA did not provide sufficient evidence to suggest that disclosure would reveal substantial legal breaches or significant public safety issues.
  • Public interest override: The court found that OUTA failed to support its reliance on the public interest override with evidence of legal non-compliance or public safety concerns.
  • Commercial harm: The court acknowledged the potential commercial harm to N3TC if the information were disclosed, especially given the competitive tendering environment. Moreover, the disclosure could disadvantage N3TC in future negotiations.

Order

The court:

  • granted OUTA condonation for non-compliance with the 180-day period referred to in s 78(2)(c)(i) of PAIA;
  • struck out all references in the present application to the third and fifth respondents;
  • dismissed the application; and
  • ordered OUTA to pay the costs of the respondents who opposed this application.

Details of OUTA v SANRAL

  • Universal citation: [2023] ZAGPPHC 1903
  • Case number: (32095/2020)
  • Full name: Organisation Undoing Tax Abuse NPC v South African National Roads Agency Ltd and Others

Please note: This judgment summary is not intended for a general audience. It is specifically drafted for the members of the Michalsons Access to Information programme.

Organisation Undoing Tax Abuse NPC v South African National Roads Agency Ltd and Others (32095/2020) [2023] ZAGPPHC 1903 (14 November 2023)