The relevant facts of the case are as follows, AfriForum NPC submitted a request to Eskom Holdings SOC Limited in terms of the Promotion of Access to Information Act 2 of 2000 (PAIA) seeking access to Eskom’s active coal and diesel procurement contracts, including contracts relating to the transportation and distribution of those commodities. The request was made in the context of ongoing load-shedding, Eskom’s precarious financial position and widespread allegations of corruption and maladministration highlighted by the State Capture Commission.

Eskom partially granted the request but refused access to its coal and diesel supply contracts. It relied on sections 42(3)(b) and (c) of PAIA, alternatively sections 36(1)(b) and (c), contending that disclosure would likely prejudice its commercial and financial interests, undermine its position in future price negotiations and cause harm to the commercial interests of third‑party suppliers. AfriForum lodged an internal appeal, which was deemed dismissed due to Eskom’s failure to respond within the statutorily prescribed period. AfriForum consequently approached the High Court for relief.

High Court

The Gauteng Division of the High Court held that Eskom had failed to justify its refusal of access as required by PAIA. The court found that Eskom merely cited the relevant statutory provisions without providing a factual basis demonstrating how disclosure of the contracts would, in fact, be likely to cause harm to its commercial or financial interests. The High Court emphasised that PAIA establishes disclosure as the default position and that a public body seeking to refuse access bears an evidentiary burden to substantiate the refusal with clear and cogent reasons. It concluded that Eskom’s reasons were speculative and insufficient and accordingly ordered Eskom to grant AfriForum access to the outstanding records. Although the High Court later accepted that it had applied a more stringent test than was necessary, it granted Eskom leave to appeal on that limited basis.

Supreme Court of Appeal

The SCA confirmed that the correct test is that articulated in Transnet Ltd v SA Metal Machinery Co (Pty)Ltd (147/2005) [2005] ZASCA 113, namely that the distinction between the formulations “would likely cause harm” and “could reasonably be expected” relates to the degree of expectation required, rather than the degree of probability. Applying that standard, the SCA held that Eskom had failed to discharge the evidentiary burden imposed on it by PAIA.

The court observed that coal and diesel prices are largely matters of public knowledge and that Eskom procures these commodities through open, competitive and transparent tender processes. In this context, assertions of confidentiality or commercial sensitivity require proper factual substantiation. Eskom’s reliance on generalised allegations of harm fell short of this threshold.

The SCA rejected Eskom’s contentions that disclosure would lead to inflated pricing, prejudice future negotiations or facilitate collusion among suppliers. These allegations were found to be speculative and unsupported by evidence. The court noted that bidders are already aware of prevailing market prices and that unsuccessful bidders are, in any event, entitled to access awarded contracts in procurement disputes. Claims of potential harm to third party suppliers were similarly dismissed, particularly given that those suppliers voluntarily participate in public procurement processes that are inherently subject to transparency requirements.

The court further found Eskom’s reasoning to be internally inconsistent and insufficient to establish either a probable or a reasonably apprehended risk of harm as contemplated by sections 36 or 42 of PAIA.

Key takeaways

This judgment reinforces several core principles governing the interpretation and application of PAIA and serves as a clear restatement of the demanding standards imposed on public bodies that seek to refuse access to information. First and foremost, it affirms that access remains the default position under PAIA. Refusal is the exception and must be carefully motivated. A public body seeking to deny access is required to engage meaningfully with the request and must justify its decision by reference to the specific facts of the matter, the nature of the record sought and the precise requirements of the exemption relied upon. Bare assertions that disclosure may be harmful, without a clear evidentiary foundation, are insufficient and inconsistent with the purposes of PAIA.

Secondly, the judgment provides important clarity regarding the scope and operation of the commercial‑interest exemptions in sections 36 and 42. These provisions do not permit a public body to refuse access merely by repeating the wording of the statute or by invoking commercial sensitivity in the abstract. Rather, PAIA requires public bodies to place before the court evidence demonstrating a rational and fact‑based link between disclosure and the specific harm alleged. The court made it clear that hypothetical risks, speculative fears or broadly framed concerns about potential prejudice do not meet the statutory threshold. Each refusal must be grounded in a concrete assessment of the record in question and supported by facts capable of scrutiny.

Taken together, these findings signal a heightened level of judicial scrutiny in PAIA litigation and underscore the courts’ unwillingness to defer to unsupported or formulaic claims of confidentiality by organs of state. The judgment affirms that PAIA must be applied rigorously, transparently and in good faith, in a manner that gives effect to its constitutional purpose. Public bodies that approach PAIA requests defensively or treat exemptions as a matter of routine rather than exception, run a significant risk that their refusals will not withstand judicial review.