Sanral hits back at Outa over contempt of court application

The South African National Roads Agency (Sanral) claims human error, which resulted in confusion about the case numbers of high court applications by the Organisation Undoing Tax Abuse (Outa) for information about Sanral’s long distance toll concessionaires, resulted in one of Outa’s applications being heard unopposed.

Sanral said on Thursday the matter involving the concessionaire contract of Trans African Concessions (TRAC) was heard on an unopposed basis on November 15 2021 and the default order was then granted “without Sanral’s involvement, due to human error”.

The agency and former CEO Skhumbuzo Macozoma are facing a contempt of court application for ignoring an order to provide Outa with information it requested about Sanral’s contracts with TRAC, the N4 concessionaire.

In its application launched on Monday, Outa said Macozoma must be committed to prison for a period of 30 days, suspended for one year, on condition that he 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.

Not ‘wilful defiance’, says Sanral

Sanral said on Thursday it wishes to state on the record that it “has not been nor is it currently in any wilful defiance of any court order”.

“Any assertions to the contrary are simply sensationalist and will be dealt with through legal processes,” it said.

Sanral made this claim despite Judge J van der Schyff on December 15 2021 directing Sanral to provide Outa with the requested records related to the TRAC concession contract within 15 days of the order being served on the agency.

Sanral confirmed on Thursday the court order was served on the agency on November 19 2021.

It said ENSafrica, acting on behalf of Sanral and in response to the high court order, informed Outa’s attorneys of the instruction to issue an application overturning the default order.

“Outa’s attorney was fully aware of Sanral’s intention to submit the application,” it said.

Outa confirmed this week that Sanral and TRAC informed it that it planned to lodge an application to rescind the judgment.

But Andri Jennings, an attorney at Jennings Incorporated, which is Outa’s legal representatives in this case, said Sanral and Macozoma have failed to furnish a rescission application and have “merely used the threat thereof as a delaying tactic”.

A genuine excuse?

Advocate Stefanie Fick, executive director of Outa’s accountability division, said on Thursday it “remains to be seen” if Sanral’s excuse is right or wrong.

“That is why we are going to court with this contempt application. It is something the court needs to decide.

“They [Sanral] could come with any excuse but whether the excuse is going to be good enough is a different story.

“We don’t buy it, but it’s possible a court of law buys it,” said Fick.

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.

Sanral and its concessionaires are opposing these two applications.

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.

‘Private and confidential’

Sanral said on Thursday Outa is seeking private and confidential information about the concessionaires without the consent of the concessionaires.

It said TRAC’s attorneys also informed Outa’s attorneys of an objection to the release of TRAC’s private and proprietary information as well as an intention to intervene in the court proceedings as soon as possible through the institution of a rescission application.

Sanral added that its attorney in December 2021 invited Outa’s attorneys to withdraw the court proceedings and allow Sanral to respond to the Promotion of Access to Information Act (PAIA) application and provide TRAC with an opportunity to respond.

“Outa refused to do so. From this it was clear that Outa does not have benevolent intentions in its PAIA request,” it said.

“Instead, it seeks to coerce Sanral into delivering private and confidential information of third parties, by pursuing an application to have Sanral declared contemptuous of the default order and ultimately have its former CEO committed to prison, which Sanral considers to be a scheme of sort.

“Outa was invited as long ago as December 8 2021 to permit Sanral to respond to Outa’s PAIA request.

“Outa, however, elected to put Sanral to the pains of applying for the rescission of the order – a matter that was not brought to the attention of the court in its current application for contempt of court, which Sanral is in the process of opposing.

“The issues above will be dealt with fully during court proceedings. What is important to mention at this stage is that Sanral reacted swiftly to the default order as it was received and is willing to cooperate with the rule of law,” it said.