Secretive Sanral’s loss is big victory for SA public

IT MADE headlines as a court victory that slapped down a crude bid by the SA National Roads Agency Limited (Sanral) to hide damning details of Western Cape toll contracts.

But this week’s Supreme Court of Appeal ruling was so much more than just an implied rebuke of Nazir Alli’s secretive roads agency.

More crucially, it reversed a dangerous ruling by high court Judge Ashley Binns-Ward last August, and confirmed, definitively, that all documents filed in court must be “open to public scrutiny at all times”.

It elicited a huge sigh of relief from anyone with an interest in accountability. After last year’s ruling by Binns-Ward — who said court papers could only be accessed by someone with a “personal interest” until that case was actually heard — people had feared the worst.

But this week’s judgment from Judge Visvanathan Ponnan and a full bench rejected Binns-Ward’s reasoning, saying “secrecy is the very antithesis of accountability”.

“It prevents the public from knowing what decision was made, why it was made, and whether it was justifiable,” the judges said.

Dario Milo, a partner at Webber Wentzel, described it as an “astounding victory for open justice” with “far-reaching implications for media freedom generally”.

It also dismantles one of the preferred ways for CEOs and spin doctors to dodge questions — by saying they can’t comment because a matter is “sub judice”. Now, says Milo, “those who are being investigated can’t cite the sub judice rule to avoid discussing documents which have already been filed in court, even if the case is months way”.

For Sanral, this case is just another horrible mark on an already depressing report card.

Here, the City of Cape Town went to court to review Sanral’s plan to toll roads in the Western Cape.

Alli had argued that some of the documents should be kept secret because full disclosure would “not only cause harm and damage to Sanral, but also to the bidders in the tender process, the fiscus and economy, and the general public”.

This seemed an alarming view: why would the roads agency not be able to play open cards about what happens with our tax money?

Thankfully, the appeal court ruling means we now know.

It turns out that, should Sanral’s plan to toll the Cape materialise, it appears people may end up paying toll fees nearly triple those of Gauteng’s e-tolls. Also, here it seems that the tolling decision had been taken by Alli himself — and not the Sanral board, as the law requires.

This ruling also reconfirmed that Sanral’s pledges about “transparency” are about as empty as the Eskom executive suites at the moment. This isn’t necessarily a revelation. Three years ago, the charming Alli told this newspaper he had nothing to hide, and invited me and my colleagues, Stephan Hofstatter and Mzilikazi wa Afrika, to scrutinise any e-toll contract we desired.

Normally, this is an offer that CEOs make to journalists with fingers crossed, expecting them to be so intimidated by detail that they’d never actually accept. But investigative journalists are just geeks for tedious tomes swathed in exhausting legalese. We leapt at the chance.

Alli then set new rules: we could only look at the documents in Sanral’s office, only for three hours at a time, and no copies could be made.

This didn’t deter us: we went every day for a number of afternoons, poring through every dull detail of every dull contract.

But, of course, this was transparency Sanral-style. What wasn’t in the documents, for example, was how much Sanral had paid its numerous consultants on the e-tolls, including a murky Pretoria company called Tollplan.

So we asked Alli where these details were. His response was illuminating: “It’s got nothing to do with you,” he snapped.

It was an important question at the time, considering Tollplan was said to have made billions from Sanral, and Alli had gone to court to gag one of Tollplan’s former bosses.

Sanral, it seems, doesn’t understand that “democracies die behind closed doors” — a notion laid down by the judges in the US case of Detroit Free Press vs John Ashcroft, the former US attorney-general.

“When government begins closing doors, it selectively controls information rightfully belonging to the people. Selective information is misinformation,” those judges said.

Here’s hoping this week’s slap causes Alli’s roads agency to rethink its apparent desire to throw a veil of secrecy over everything it does.