In a recent matter of De Lange and another vs Eskom Holdings Limited and Others, the South Gauteng High Court was called upon to adjudicate an application by a journalist and his employer who had requested Eskom to furnish them with documentation relating to pricing formulas contained in long-term bulk purchase agreements concluded between Eskom and the listed mining company, BHP Billiton (“Billiton”).

The requests for information were made in accordance with the provisions of the Promotion of Access to Information Act (“PAIA”). This Act provides inter alia for the procedure in terms of which private or public parties’ records may be accessed.

PAIA also provides for mandatory protection of commercial or confidential information of a third party.

It is clear that the right to access information is not an absolute one and the court held that Billiton had put forward reasonable grounds indicating that an order compelling it to disclose inter alia sensitive pricing and cost information, would cause it commercial harm in that this would have the effect of revealing some of its trade secrets.

The applicants argued that the case concerned issues of considerable public interest and it appeared from the court papers that 2 smelters operated by Billiton consumed more than 5,6% of Eskom’s total base-load capacity. Against the back-drop of electricity tariff increases and blackouts (which were anticipated in the coming winter months in South Africa), the applicants argued that the requisite public interest in the disclosure of the information was present. The court held in favour of the applicants and Eskom was ordered to disclose certain specific information.

From the public’s perspective it is interesting to note that individuals can succeed in obtaining information from public bodies provided that the required “public interest” can be proved. On the other hand, it is also encouraging to see that courts realise the value of private entities’ trade secrets and the harmful effect which disclosure of sensitive and/or confidential information could have to companies and, ultimately, their shareholders.

Written by Leander Opperman, Adams & Adams