End of Eskom’s secrets

The Supreme Court of Appeal has dismissed Eskom’s argument that it cannot reveal the details of some of its coal and diesel contracts to protect commercially sensitive information.

Eskom must now provide copies of all relevant contracts to civil rights organisation AfriForum, something the utility has fought to avoid.

This dispute started four years ago, when the civil rights organisation submitted a Promotion of Access to Information Act (PAIA) application to Eskom for copies of its coal and diesel contracts.

When Eskom refused, citing PAIA limitations, the case went to the High Court.

In March 2024, the Pretoria High Court ruled in AfriForum’s favour, ordering Eskom to provide the organisation with copies of all active contracts relating to the purchase, transportation and distribution of coal and diesel.

The utility was also ordered to provide AfriForum with copies of unredacted contracts for the supply of electricity to neighbouring countries.

However, Eskom appealed this ruling, approaching the Supreme Court of Appeal (SCA) to argue that it was justified in refusing access to the contracts in terms of Section 42 and Section 36 of the PAIA.

The utility argued that its refusal to provide access to the contracts was to protect commercially sensitive information.

However, on Monday, 23 March 2026, the SCA dismissed Eskom’s argument, reaffirming the High Court’s decision that disclosing the information is permissible under PAIA.

“The public, in whose interest Eskom concludes these contracts, has a right to access them,” Judge Elizabeth Baartman said.

“That is the default position. The reasons advanced to deny access do not meet the required test.”

“It follows that I cannot fault the High Court’s finding that there is nothing to support the allegation that the agreements are confidential, contain information that is commercially sensitive, and would disadvantage Eskom or third parties in contractual negotiations.”

“In the circumstances of this matter, the alleged harm is not a probable or reasonable apprehension, and so the coal and diesel contracts should be disclosed.”

Therefore, while Baartman acknowledged that the High Court applied the incorrect test in making its decision, she said it reached the correct conclusion. The SCA dismissed Eskom’s appeal, including the costs of two counsel.

Following the SCA’s judgment, AfriForum’s manager of local government affairs, Morné Mostert, said it will now be possible to investigate whether Eskom’s coal and diesel contracts are market-related and legally concluded.

“Eskom procures more than 100 megatonnes of coal annually, making it one of its largest expenses,” Mostert said. 

“Considering documented irregularities regarding Eskom’s procurement processes, findings of the Zondo Commission of Inquiry into State Capture and detailed shortcomings in Eskom’s own financial statements, transparency regarding these contracts is essential.”

Mostert said this marks a major step forward for transparency in South Africa. AfriForum plans to assemble a team of experts to study the contracts.

“For long, these contracts have been shielded from scrutiny. Transparency is not optional – it’s an essential for accountability,” he said.