De Lange and Another v Eskom Holdings Ltd and Others

• Jurisdiction: South Africa
• Judge: Kgomo J
• Judgment Date: 29 July 2011
• Citation: 2012 (1) SA 280 (GSJ)
• Docket Number: 10/10063
• Hearing Date: 11 April 2011
• Counsel: S Budlender for the applicants. P Kennedy SC for the first respondent. K McLean for the second and third respondents. No appearance for the fourth respondent. K Pillay for the fifth respondent (the Minister of Justice and Constitutional Development).
• Court: South Gauteng High Court, Johannesburg

Kgomo J: I

Introduction

[1] This is an application in terms of the Promotion of Access to Information Act 2 of 2000, as amended. It arises out of or from a request J

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A for information made by the first applicant, a financial journalist, and the second applicant, his employer, to Eskom (the first respondent).

[2] For ease of reference and for the sake of convenience the following references or terms will be used interchangeably throughout this judgment:

•

B PAIA or Promotion of Access to Information Act 2 of 2000.

•

Mr De Lange or first applicant.

•

Media 24 Ltd or second applicant.

•

Eskom or first respondent.

•

BHP Billiton or second respondent.

•

C Hillside Aluminium or third respondent.

•

Motraco-Companhia or fourth respondent.

•

The Minister or fifth respondent.

[3] The request relates to the contracts that Eskom has with two companies in the BHP Billiton group of companies, namely Hillside D Smelter in Richards Bay, South Africa, and Mozal Smelter in Maputo, Mozambique, for the supply of electricity.

[4] The request was made on 18 September 2009 and the details thereof were for:

•

All documents evidencing the formula for and/or manner of the E determination of the price for the supply of electricity by Eskom to the two smelters.

•

All documents evidencing the identities of all signatories to all written agreements between Eskom and BHP Billiton or its affiliates for the supply of electricity to the two smelters.

•

F All documents evidencing the date of commencement and the date of termination of written agreements between Eskom and BHP Billiton or its affiliates for the supply of electricity to the two smelters.

[5] Before this present application was brought the applicants brought a first application for access to information under PAIA on 30 June 2009 to G Eskom. In that application the applicants sought:

•

The bulk-purchase agreement for the supply of electricity by Eskom to Hillside Aluminium Smelter in Richards Bay.

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The bulk-purchase agreement for the supply of electricity by Eskom to the Mozal Aluminium Smelter in Maputo, Mozambique.

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The total and final invoices containing the amounts due by BHP H Billiton to Eskom in respect of the electricity for the two smelters for a period of three years.

[6] The above request, which I will henceforth refer to as 'the initial request', was refused by Eskom on 29 July 2009. The reasons advanced I for the refusal were advanced in the notice or letter or refusal. For purposes of this judgment it is not necessary to regurgitate them in full, save to state that they can be summarised as:

•

Eskom not being permitted to disclose the Bulk Purchase Agreements on the grounds set out in ss 36(1)(b) and (c), 37(1)(a) and 42(3)(b) and (c) of PAIA.

•

J The Bulk Purchase Agreements contain both general and specific

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commercial, financial and technical information of a highly A confidential nature belonging to the BHP Billiton Group, the disclosure of which will cause significant harm to the commercial and financial interest of the group, thereby putting it (BHP Billiton) at a disadvantage in its contractual negotiations, both in South Africa and Mozambique as well as prejudice it in commercial competition. B

[7] It is the applicants' case that notwithstanding the fact that they considered Eskom's refusal to be unlawful and incorrect, they ultimately took a view that it would be more appropriate and prudent that a narrower and more specific request for information be filed. That was when they filed the application dated 18 September 2009 which is the C object of this judgment.

[8] It is my considered view that it would be proper and appropriate that the complete request be reproduced hereunder to put issues in their proper perspective. The application sought the following records, data or documents: D

'1.

All and any documents, or relevant extracts of documents, evidencing the formula for and/or manner of the determination of the price for the supply of electricity by Eskom Holdings Ltd or its affiliates to:

(a)

BHP Billiton plc or any of its affiliates or Hillside Aluminium E Ltd Smelter in Richards Bay, South Africa.

(b)

BHP Billiton plc or any of its affiliates or Mozambique Transmission Company SARL or Mozal Smelter in Maputo, Mozambique.

2.

All and any documents or relevant extracts of documents, evidencing the identities of all signatories to all written agreements F between Eskom Holdings Ltd or its affiliates and any other party, for the supply of electricity to:

(a)

BHP Billiton plc or any of its affiliates or Hillside Aluminium Ltd for the operation of the Hillside Aluminium Smelter in Richards Bay, South Africa; and

(b)

BHP Billiton plc or any of its affiliates or Mozambique G Transmission Company SARL or Mozal SARL for the operation of the Mozal Aluminium Smelter in Maputo, Mozambique.

3.

All and any documents or relevant extracts of documents, evidencing the date of commencement and termination of all written agreements between Eskom Holdings Ltd or its affiliates and any H other party, for the supply of electricity to:

(a)

BHP Billiton plc or any of its affiliates or Hillside Aluminium Ltd for the operation of the Hillside Aluminium Smelter in Richards Bay, South Africa

(b)

BHP Billiton plc or any of its affiliates or Mozambique Transmission Company SARL or Mozal SARL for the operation I of the Mozal Aluminium Smelter in Maputo, Mozambique.'

[9] On 20 October 2009 Eskom decided to extend the period in which it had to reply to the request for access to information by a further period of 30 days. J

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A [10] This extension was done unilaterally and the applicants did not then, and do not now, have any qualms with that unilateral decision — maybe because they recognised they needed to apply their minds to the application.

[11] On 13 November 2009 the applicants received a letter from Eskom B containing a decision on their request for access to information. A copy of this letter is attached marked annexure JD8. The letter stated as follows:

'Section A: Granting access

'Upon consideration of your request for access to information on behalf C of Media 24 (trading as Sake 24), we have decided to grant access to the following record(s):

1.

Identities of all signatories

1.1

The signatories to the electricity supply agreement for Hillside are Eskom Holdings Ltd and Hillside Aluminium Ltd.

1.2

The signatories to the electricity supply agreement for Mozal D are Eskom Holdings Ltd, Mozambique Transmission Co (Motraco), Electricidade de Mocambique EP and Swaziland Electricity Co.

Section B: Refusal

Upon consideration of your request for access to information, on behalf of Media 24 (trading as Sake 24), we believe that access to the following E records should be refused on the ground set out below:

1.

The formula for and/or manner of the determination of the price for the supply of electricity

1.1

F Having applied our mind, upon consideration of your request, and after been (sic) declined on consent to release the information, Eskom will not disclose:

1.1.1

Any documents or relevant extracts of the documents relating to the formula and/or manner of the price determination for the supply of electricity for the operation of Hillside on the grounds set out in ss 36(1)(b) and (c) and 37(1)(a) of the Promotion of Access to Information Act 2 of 2000.

1.1.2

G any documents or relevant extracts of the documents relating to the formula and/or manner of the price determination for the supply of electricity for the operation of Mozal on the grounds set out in ss 36(1)(b) and (c) and 37(1)(a) of the Promotion of Access to Information Act 2 of 2000.

1.2

H The requested documents or the relevant extracts thereof contain both general and specific commercial, financial and technical information of a highly confidential nature belonging to the BHP Billiton Group, the disclosure of which will cause significant harm to the commercial and financial interest of the BHP Billiton Group. The BHP Billiton Group I believes that the disclosure of such confidential information will put the BHP Billiton Group at a disadvantage in its contractual negotiations both in South Africa and Mozambique and prejudice it in commercial competition.

1.3

Should Eskom disclose the documents or relevant extracts of the documents relating to the formula and/or manner of the J price determination, Eskom will be in breach of a duty of

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confidence owed to either Hillside Aluminium Ltd or A Motraco.

2.

The date of commencement and date of termination of all written agreements

2.1

Having applied our mind, upon consideration of your request, and after been (sic) declined consent to release the information, Eskom will not disclose: B

2.1.1

Any documents or relevant extracts of the documents evidencing the commencement and termination dates of written agreements for the supply of electricity for the operation of Hillside on the grounds set out in ss 36(1)(b) and (c) and 37(1)(a) of the Promotion of Access to Information Act 2 of 2000. C

2.1.2

Any documents or relevant extracts of the documents evidencing the commencement and termination dates of written agreements for the supply of electricity for the operation of Mozal on the grounds set out in ss 36(1)(b) and (c) and 37(1)(a) of the Promotion of Access to Information Act 2 of 2000. D

2.2

The requested documents or the relevant extracts thereof contain both general and specific commercial, financial and technical information of a highly confidential nature belonging to the BHP Billiton Group, the disclosure of which will cause significant harm to the commercial and...