Nonprofit watchdog the Organisation Undoing Tax Abuse (Outa) has accused the South African National Roads Agency Limited (Sanral) and the Construction Education and Training Authority (Ceta) of keeping contracts with questionable companies secret, which it says is in line with a government culture of blocking the public from accessing information.

Outa has filed complaints against Sanral and Ceta over the entities’ refusal to provide Outa with information requested in terms of the Promotion of Access to Information Act (PAIA) on contracts with two businesses linked to “questionable activities”.
 
Outa says that while Sanral provided some of the information requested but refused the rest, Ceta completely ignored the request.
 
In terms of PAIA, disclosure is the rule not the exception, Outa legal project manager Asavela Kakaza says.
 
In its complaint to the Information Regulator, Outa said that “… it is without doubt that Section 11 of PAIA imposes a duty on a public body to give access to information when so requested.

“This approach is further supported by Section 32 of the Constitution which ensures the right not to be refused access to information. Furthermore, Section 11 of PAIA makes it clear that, under our law, disclosure of information is the rule and exemption from disclosure is the exception,” Outa pointed out.
 
THE SANRAL REFUSAL
On June 23 last year, Outa asked Sanral for information on a specific tender awarded on May 3 to a joint venture (JV) for capacity improvements on a section of the N3 in KwaZulu-Natal from the Westville viaduct to the Paradise Valley interchange. The tender was worth R4.7-billion.

On October 20, Sanral partially granted the request, providing access to some documents but refusing access to the rest, claiming that this required consent from the third parties who were affected, as this was commercially sensitive information.

However, Outa says there is a lack of clarity over whether Sanral did indeed attempt to get that consent, as it initially failed to do so by the legal deadline, or what the response was from the third parties, if any. To date, no further documents were provided to Outa – effectively a refusal.
 
Kakaza notes that Section 46 of the PAIA allows for granting access to a record “… if the disclosure of the record would reveal evidence of a substantial breach of the law or an imminent and serious public safety or environmental risk; and where the public interest in the disclosure clearly outweighs the harm contemplated in the section relied upon to refuse access”.

In essence, this section overrides the restriction on commercially sensitive information, he states.
 
“Outa therefore wishes to evaluate the legality of the abovementioned tender that is of public interest. However, Outa will only be able to do so upon the production of the records referred to in its request,” Kakaza says.
 
She states that Outa is of the view that Sanral, as a public body, has an obligation to foster transparency and accountability.

“Any third party who engages in business with any public body does so with the full knowledge that once information is handed over to a public body, that information opens itself to public scrutiny and these are the fundamental values that are protected by our Constitution in terms of which transparency forms part of the core values of our democratic order,” Kakaza reasons.
 
WHY OUTA WANTS TO SEE THE SANRAL CONTRACT
Outa notes that, in September 2022, the directors of one of the companies that form part of the JV (the JV partner), were arrested on charges of fraud, theft and corruption relating to a 2012 tender with the KwaZulu-Natal Department of Roads and Transport.

In October last year, Transport Minister Sindisiwe Chikunga told Parliament in a written reply that Sanral was legally compelled to award the tender to the JV because it was the highest-scoring bidder, that the directors were considered innocent until proven guilty and that the JV partner was not blacklisted as a service provider on the National Treasury or Sanral databases.

Chikunga further added that, if the directors of the JV partner were convicted, then Sanral “reserves the right to terminate the contract”.
 
Outa believes the criminal charges being brought against the JV partner directors should have ruled out the JV from being considered for the contract right from the start.

Even if the contract is cancelled and the directors are convicted, it may be too late to stop the loss of payments on the contract, it argues.
 
Outa points out that the Pretoria High Court last week overturned Transnet’s award of a tender to the JV partner.

In that case, the court referred to “the common cause adverse findings against [the JV partner]” and said “the appointment of [the JV partner] was so unreasonable that no reasonable person could have taken such a decision”.
 
“This is one of the reasons Outa wants access to the information pertaining to the tender that Sanral awarded to [the JV partner]. We want to check the rationality and reasons behind that decision,” Kakaza says.

Engineering News reached out to Sanral for comment but recieved no response.
 
THE CETA REFUSAL
On December 11 last year, Outa asked Ceta for information relating to a R24-million tender that it awarded on June 22, 2018, to a company for the provision of a biometric system for learner attendance administration.

“Ceta blatantly ignored Outa’s PAIA requests which then led to a deemed refusal and or dismissal,” Kakaza says, noting that Outa wishes to evaluate the legality of the agreement between Ceta and the company, which requires access to the requested documents.

WHY OUTA WANTS TO SEE THE CETA CONTRACT
The company is the same one that won a tender in November 2017 worth R162-million from the Services Sectoral Education and Training Authority (Seta) for the payment of stipends to learners and management of a biometric learner attendance monitoring system.

In November 2018, Outa investigated that tender and “exposed serious maladministration and corruption at the Services Seta”.

It points out that the contract was eventually cancelled, but the company was still paid.
 
“Further investigations by Outa during 2022 revealed a well-established network of individuals and companies who assisted each other in obtaining tenders not only at the Services Seta but also at other Setas and other organs falling under the Department of Higher Education, Science and Innovation,” Kakaza alleges.

Regarding the R24-million tender, however, Ceta strategic support executive manager Mabo Thobela believes the matter is closed.

“We confirm that Outa has interacted with Ceta regarding the [R24-million] contract. Ceta informed Outa that the contract with [the company] was cancelled and that they confirmed that they were satisfied with this response,” he tells Engineering News. 
 
A GOVERNMENT CULTURE OF SECRECY
The Information Regulator includes PAIA feedback in its yearly report, which shows that public entities routinely refuse to disclose information requested and that 75% of them fail to comply with the requirement to provide the Information Regulator with statistics on these requests.
 
The Information Regulator yearly report for 2022/23 notes that there were 80 556 requests for information that year to national government departments, provincial departments, municipalities, national and provincial government entities, universities and technical vocational education and training colleges.

Of those requests, only 46 833, or 58%, were granted in full.
 
These statistics were based on 195 public bodies which complied with the requirement to provide the Information Regulator with this information, but they made up only 25% of the departments and entities which should have provided this information.
 
A total of 291 complaints were lodged with the Information Regulator over the refusals. There were 1 196 court actions filed to challenge these refusals and, of these, 1 030 of them, or 86%, were filed against provincial government departments.
 
By comparison, the Information Regulator also noted that there were 40 974 requests for information to private bodies, of which 32 990, or 81%, were granted in full. Moreover, there were only 71 complaints to the Information Regulator and 28 court applications to challenge refusals.
 
The Information Regulator itself received seven requests for information, granting full access to three and refusing four in full.