24 March 2026
| Construction, Engineering and Infrastructure Law
The Supreme Court of Appeal in Eskom Holdings SOC Limited and Another v AfriForum NPC has reaffirmed the central role of transparency in South African administrative law.
The judgment confirms that access to information held by public bodies is the default position, and that refusals under the Promotion of Access to Information Act 2 of 2000 (PAIA) must be properly justified.
Background
In 2022, South Africa experienced debilitating blackouts as a result of nationwide load-shedding implemented by Eskom.
In an effort to understand the root of the crisis, AfriForum requested access, in terms of PAIA, to various Eskom records, including contracts relating to the purchase and transportation of coal and diesel, as well as agreements governing the supply of electricity to neighbouring countries. The purpose of the request was to determine whether corruption, mismanagement, or other irregularities contributed to the ongoing electricity crisis.
AfriForum, a non-profit civil rights organisation representing more than 303 000 members, argued that these contracts were matters of significant public interest, particularly given Eskom’s position as a state-owned monopoly supplier of electricity. It also pointed to allegations of corruption raised in the Zondo Commission reports and noted that Eskom had supplied approximately 60 567 gigawatt hours of electricity to neighbouring countries between 2018 and 2022, despite South Africa experiencing severe electricity shortages.
Eskom only partially complied with the request. It provided limited or redacted information, such as lists of contracts, but refused to disclose the contracts themselves, relying on PAIA provisions that permit refusal where disclosure may harm commercial interests or prejudice negotiations.
AfriForum lodged an internal appeal, and when the appeal failed, it approached the High Court to compel disclosure of the records.
The High Court Judgment
The High Court emphasised that the PAIA gives effect to the constitutional right of access to information in section 32 of the Constitution.
In this context, disclosure of information held by public bodies is the default position, while refusal of access is the exception and must be properly justified.
The Court found that Eskom had failed to provide adequate reasons for refusing access to the requested records. In its response letter, Eskom merely cited provisions of PAIA (specifically sections 42(3)(b) and (c)) without explaining how those provisions applied to the documents requested. The Court held that a public body cannot rely on bare references to statutory provisions; it must demonstrate, with sufficient detail, why the exemption applies in the particular circumstances.
The Court also rejected Eskom’s reliance on the protection of personal information as a basis for refusing disclosure. Eskom had asserted that certain portions of the contracts were redacted to safeguard the personal information of third parties. However, the Court found that this assertion was vague and unsupported. Eskom failed to identify what personal information was involved or how disclosure would infringe any legally protected privacy interest.
Similarly, Eskom did not provide any evidence to demonstrate that disclosure of the records would harm its commercial interests or those of third parties. Where PAIA allows refusal on the basis that disclosure would likely cause commercial harm, the party resisting disclosure must show, on real and substantial grounds, that such harm is probable. Eskom provided no such evidence.
In the absence of proper justification, the Court held that Eskom had not discharged the burden required to refuse access under PAIA. Vague and unsupported assertions were insufficient to limit the constitutional right of access to information. The High Court therefore set aside Eskom’s refusal and ordered Eskom to disclose the requested records.
The issues before the SCA
On appeal, the Supreme Court of Appeal (SCA) had to determine the correct test for refusing access to records under PAIA.
Leave to appeal was granted because the High Court accepted that it may have applied a more stringent test than that explained by the SCA in Transnet Ltd and Another v SA Metal Machinery Company (Pty) Ltd. In that case, the Court held that the distinction between the phrases “would be likely to cause harm” and “could reasonably be expected to cause harm” relates to the degree of expectation, not the degree of probability.
The issues before the SCA were therefore:
1. The correct test to be applied under section 42(3)(b) of PAIA.
2. Whether Eskom’s refusal to disclose the requested records was justified when the correct test is applied.
3. Whether the public interest override in section 46 of PAIA justified disclosure, even if sections 42 or 36 applied.
The SCA’s Findings
The SCA reaffirmed that access to information held by public bodies is a constitutional right under section 32 of the Constitution, given effect through PAIA. The Court emphasised that disclosure is the default position and that the burden rests on the State to justify any refusal of access.
The Court confirmed the test explained in Transnet Ltd v SA Metal Machinery Company (Pty) Ltd. The wording of the PAIA provision determines what must be shown.
If the provision says disclosure “would be likely to cause harm”, the public body must show that harm is objectively probable and supported by evidence.
If it says disclosure “could reasonably be expected to cause harm”, the public body must show reasonable grounds for expecting that harm.
The State cannot simply refuse access based on speculation. It must provide a factual basis showing that the claimed harm is real.
Applying this test, the SCA found that Eskom failed to justify its refusal. Eskom argued that disclosing its coal and diesel contracts would harm its commercial interests, weaken its negotiating position, and lead to inflated prices or collusion by suppliers. But these claims were unsupported by evidence and largely speculative.
The SCA also considered the nature of Eskom’s procurement processes. Coal and diesel are purchased through public tenders, and pricing information is often already publicly known. In that context, claims of commercial sensitivity were difficult to sustain.
The SCA further rejected Eskom’s reliance on potential harm to third-party suppliers. Eskom made only general assertions that suppliers might suffer disadvantage or financial harm, without providing any concrete evidence. In public procurement, where pricing and contract terms frequently become known, the alleged harm was neither probable nor reasonably expected.
The Court therefore concluded that Eskom had not met the standard required under sections 42(3)(b) and (c), or sections 36(1)(b) and (c), of PAIA to justify refusing access.
Because Eskom failed to establish any valid ground for refusal, the default position of disclosure under PAIA applied. It was therefore unnecessary for the Court to consider whether the public interest override in section 46 applied.
The SCA accordingly dismissed the appeal and upheld the High Court’s order compelling disclosure, with costs, including the costs of two counsel.
Conclusion
The judgment confirms a simple rule: under PAIA, disclosure is the default and refusal is the exception. Public bodies must justify any refusal with clear evidence.
Claims of commercial sensitivity cannot rest on speculation. Where no real harm is shown, information must be disclosed.
The decision reinforces the importance of transparency in public procurement, particularly where state entities operate in critical sectors and manage public resources.
