THE South African National Roads Agency Ltd (Sanral) will ask the Western Cape High Court next week to grant it a secrecy application, which will allow it keep details of the proposed tolling of the N1 and N2 highways confidential.
This would include information on what the tariffs will be and how much revenue will flow to the operator.
The application for secrecy on grounds of "commercial confidentiality" is highly unusual for a public entity. If successful, critical information about the costs of the project will not be heard in open court.
The application is part of the continuing dispute between Sanral and the City of Cape Town, which opposes the tolling of the N1 and N2.
In May last year the city won an interdict in the Western Cape High Court, preventing Sanral from starting the tolling programme until the matter could be fully heard in court. The city wants the decision to toll the roads set aside.
The mayoral committee member for transport, Brett Herron, said although the May order had compelled Sanral to provide a full set of documentation to the city to enable it to prepare court papers, the agency had delayed doing so for nine months. "Sanral claimed the documents were confidential. We eventually got them in February this year on the basis that those who had access to them signed a confidentiality agreement. Sanral said should any of the confidential information be included in our papers, they would apply to prevent us from filing them in open court," Mr Herron said on Monday.
He said the supplementary papers included a range of information that Sanral has so far refused to share with the public. These include: how much it will cost to convert the N1 and N2 into toll roads; the proposed fees; the revenue the preferred bidder expects from the project; and how much of every rand collected in fees will be spent on project infrastructure and operations, as opposed to road improvements, maintenance and operational work.
The papers also include a number of expert reports dealing with issues such as the economic and socioeconomic effects of tolling, which the city argues will have a disproportionate effect on the poor.
Mr Herron said the city would oppose Monday’s application, which is to be heard in camera. "The public has a right to know this information and no part of its court papers should be kept from the public," he said.
University of Cape Town constitutional lawyer Pierre de Vos said there would have to be compelling reasons for the order to be granted. "The principle of open justice means papers filed in court are normally for public consumption. It is only in the most extraordinary circumstances that a court will protect the secrecy of information," he said.
Sanral on Monday declined to comment as it "does not litigate through the press" and the matter was sub judice.
Several public interest lobby groups are considering whether to apply to the court to oppose Sanral’s secrecy application.
In the case of the e-tolling in Gauteng, groups opposed to tolling have also accused Sanral of obfuscation and a lack of transparency over the funding and financing arrangements.