Sanral and former CEO face contempt of court application

The South African National Roads Agency (Sanral) and former CEO Skhumbuzo Macozoma are facing a contempt of court application for ignoring an order to provide the Organisation Undoing Tax Abuse (Outa) with information it requested about Sanral’s contracts with long distance toll concessionaire Trans African Concessions (TRAC).

This follows Judge J van der Schyff on November 15 last year in the Pretoria High Court setting aside the refusal by Sanral and Macozoma of Outa’s request for information through a Promotion of Access to Information Act application about TRAC, which is Sanral’s toll concessionaire on the N4.

Read: Court order could expose ‘excessive profits’ by Sanral long distance toll concessionaire

Judge van der Schyff directed Sanral to provide Outa with the requested records within 15 days of the order being served on the agency.

In its application launched on Monday (January 24), Outa said Macozoma must be committed to prison for a period of 30 days, suspended for one year, on condition that Macozoma and Sanral comply with the court order granted to Outa last year.

Outa said that should Sanral and Macozoma fail to comply with this court order, Outa should be allowed to approach the court for an order for Macozoma’s committal to prison.

Sanral in October 2021 appointed its chief audit executive Lehlohonolo Pitse as acting CEO to temporarily take over the reins from Macozoma from November 17 until a permanent successor is named.

Macozoma was cited in Outa’s case because he is listed as Sanral’s information officer.

Outa’s original application was not opposed by either Sanral or TRAC.

Outa has lodged almost identical high court applications for information related to N3 Toll Concession (N3TC) and Bakwena, which are being opposed.

N3TC operates the toll concession on the N3 from Pretoria to Durban and Bakwena the concession on the N1 between Pretoria and Bela-Bela and the N4 from Pretoria to the Botswana border.

Long-standing quest

Outa’s request for information on the long distance toll concessionaires is driven by its long-standing attempts to obtain more transparency from Sanral about possible “excessive profits” being made by these concessionaires.

Advocate Stefanie Fick, executive director of Outa’s accountability division, previously told Moneyweb that Sanral can, through court processes, delay providing the requested information to Outa about TRAC but cannot appeal the judgment and order because neither Sanral nor TRAC opposed the application.

The contempt of court application follows Sanral and TRAC informing Outa that they planned to lodge an application to rescind the judgment – and to date failing to do so.

Andri Jennings, an attorney at Jennings Incorporated, which is Outa’s legal representative in this case, said in an affidavit that in terms of the court order granted on November 15, the period to provide the requested records expired on December 10.

Jennings said the court order was served on Sanral and Macozoma on November 19.

She said Outa’s application has been launched as a result of Sanral and Macozoma’s “deliberate, intentional refusal to comply with the court order”.

Jennings said law firm Edward Nathan Sonnenbergs (ENSafrica) served notice on November 29 2021 of its appointment as attorneys of record for Sanral and was subsequently invited and provided with access to the matter on CaseLines to ensure it had access to all the pleadings in the matter. (CaseLines is a platform for sharing evidence between justice agencies and legal teams.)

Jennings said the court order obtained by Outa has come to the attention of Sanral, Macozoma and its attorneys of record.

‘Delaying tactic’

She added that Sanral and Macozoma were on December 13 given the opportunity to file their proposed rescission application, which the agency undertook to do on or before January 5 2022 “despite the respondent having been aware of the application since February 22 2021 and the subsequent order granted on November 15 2021”.

Jennings said ENSafrica sent an email on January 4 advising that it intended to bring the rescission application by January 21.

“No reason was provided for the further delay, so the respondents were given until January 14 2022 to serve and file [their] rescission application.

“Despite the extension of time and on the respondent’s own proposed deadline of January 21 2022, which was not agreed to, the respondents have failed to furnish a rescission application and have merely used the threat thereof as a delaying tactic.

“The first respondent’s failure to comply with the order should, with respect, be frowned upon by this court especially taking into account the period of delay from the date the order was granted, and [the] further indulgence extended to the respondents, given the opportunity to serve and file the forever promised but never forthcoming rescission application,” she said.

Jennings said a punitive cost order is justified in the circumstances.

Outa legal project manager Brendan Slade said the order was granted in Outa’s favour on November 15 but “they did nothing, hence we are forcing them to comply”.

“We want that information and we will pursue this matter to finality,” he said.

A court date has not yet been set for the application to be heard.

The documents Sanral must provide to Outa include copies of:

• The Sanral concession contract with TRAC for the N4 from Tshwane to Maputo port, including all annexures, addenda and amendments.

• All operation and maintenance contracts between TRAC and the operations and maintenance contractors relating to the concession contract.

• The operational and maintenance manual relating to the concession contract.

• All construction work contracts entered into by TRAC relating to the concession contract.

• Copies of TRAC’s complete financial statements submitted to Sanral in terms of the concession from 1999/2000.

• All reconciliations of TRAC’s profit and loss accounts, with their proposed budgets, submitted to Sanral in terms of the concession from 1999/2000.

• All annual reports submitted to Sanral in terms of the concession contract from 1999/2000, certifying that the highway usage fee was correctly calculated.

• The lists submitted to Sanral in terms of the concession of TRAC’s lenders and creditors, to which TRAC owes more than R10 million.