Will Eskom's appeal to keep coal and diesel contracts secret hold up in court?

Power utility Eskom is appealing the Gauteng High Court in Pretoria’s decision to grant lobby group AfriForum access to its coal and diesel contracts in terms of the Promotion of Access to Information Act (PAIA).

Eskom has approached the Supreme Court of Appeal, arguing that it was justified in refusing access to the contracts under Sections 42 and 36 of PAIA, which relate to the protection of commercially sensitive information.

The Gauteng High Court in Pretoria rejected Eskom’s refusal to grant access to its coal and diesel contracts. The court ordered the entity to provide AfriForum with copies of all active contracts related to the purchase, transportation, and distribution of coal and diesel, as well as unredacted contracts for supplying electricity to neighbouring countries.

AfriForum maintains that Eskom failed to provide adequate factual grounds to justify its refusal and instead relied on generic references to commercial sensitivity without demonstrating probable harm. The High Court found that disclosure is the rule under PAIA, while exemption from disclosure is the exception.

“This matter goes beyond a technical dispute about statutory interpretation. Coal procurement constitutes Eskom’s single largest expenditure item, involving the purchase of more than 100 megatons of coal annually. In light of documented procurement irregularities at Eskom, the findings of the State Capture Commission, and reported control deficiencies in Eskom’s own financial statements, transparency regarding these contracts is not optional — it is constitutionally required,” said Morné Mostert, Manager of Local Government Affairs at AfriForum.

AfriForum argues that Section 32 of the Constitution guarantees the right of access to information held by the state, while Section 217 further requires that public procurement must be fair, equitable, transparent, competitive, and cost-effective.

AfriForum maintains that once an organ of state enters into public procurement contracts of this magnitude, the public is entitled to scrutinise the pricing and terms to ensure that consumers are not bearing the cost of inflated or irregular agreements.

“Eskom’s attempt to withhold this information under broad claims of commercial confidentiality undermines accountability and erodes public trust. The public has a right to know whether coal and diesel contracts are market-related and lawfully concluded. Accountability cannot exist behind redactions and secrecy. The High Court correctly held that Eskom did not discharge the burden required under PAIA to justify refusal,” Mostert said.

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