The South African public just won the right to see Eskom’s coal supply contracts

Eskom is Africa’s largest power utility, supplying more than 80% of South Africa’s electricity, almost entirely from coal. Coal is its single biggest expense, with every rand of that spending ultimately passed through to South African electricity consumers. The contracts that determine those costs are among the most consequential public documents in the country. Yet until this week, they were completely hidden, even though Eskom is a publicly owned utility procuring fuel under public procurement rules.

In June 2022, activist groups filed a formal request under South Africa’s Promotion of Access to Information Act for copies of Eskom’s coal and diesel purchasing and transportation contracts. Eskom denied the request, claiming commercial sensitivity. The groups challenged the refusal in the Pretoria High Court, won in 2024, and then watched as Eskom appealed. The final ruling denying Eskom’s confidentiality arguments and upholding the public’s right of access came on March 23, 2026: nearly four years later.

Four years. For information that any electricity consumer in South Africa has a direct and legitimate interest in seeing.

The ruling made three hugely important points about contract transparency

The court’s reasoning articulates three fundamental tenets that apply well beyond this specific case:

• Commercial sensitivity is not a blanket shield. The court found no evidence that disclosure would cause actual harm to Eskom or its suppliers. An unsubstantiated claim of confidentiality does not override the public’s right to see the contracts. This matters because “commercially sensitive” remains the standard first line of defense for utilities resisting transparency in markets from Southeast Asia to sub-Saharan Africa to Latin America. South Africa’s courts have now found that defense insufficient. Other jurisdictions and their regulators should take note.
• Public contracts paid for by the public belong to the public. Judge Elizabeth Baartman’s ruling was unambiguous: “The public, in whose interest Eskom concludes these contracts, has a right to access them.” She found “nothing to support the allegation that the agreements are confidential, contain information that is commercially sensitive, and would disadvantage Eskom or third parties in contractual negotiations.” The court’s reasoning applies equally to power purchase agreements (PPAs) and any other long-term energy deal where private costs become public obligations. If the public bears the cost and the risk, the public deserves to see the contract.
• Secrecy in public contracting is unconstitutional. The court went further, framing opacity itself as constitutionally impermissible: “Decisions made in secret and without public knowledge is anathema to the statutory framework, and to our Constitutional norms.” This is a sweeping statement that extends well beyond coal supply contracts. It is a direct challenge to the culture of secrecy that has surrounded Eskom’s contracting for decades, and a signal to other publicly owned utilities across emerging markets that the same challenge could come for them.

These same principles should also apply to electricity contracts with private producers

The Eskom case reveals an unfortunate contradiction in modern power markets. The coal contracts had to be disclosed because Eskom, as a publicly owned utility procuring fuel, was subject to public procurement and access-to-information laws. But consider what changes if you move one step up the energy supply chain: if Eskom were instead buying power from a private independent power producer (IPP) running a coal-fired plant, the contracts governing that arrangement, determining the same electricity costs, paid by the same consumers, would in most cases remain entirely confidential. Same public cost. Same ratepayer bill. No disclosure obligation.

The point is not that private participation in energy markets is a problem. IPPs bring essential private capital to electricity sectors that are chronically underinvested, and that role becomes more important, not less, as the energy transition accelerates. The point is that the move toward IPP-based generation removes the last remaining legal hook, public procurement law, that currently compels any disclosure at all. As more and more power capacity is built by private developers under long-term PPAs, the contracts that most directly determine what consumers pay for electricity are migrating precisely into the category that transparency law reaches least effectively.

It is worth being precise about what “not knowing” means in the PPA context. The headline tariff, which is what a utility agrees to pay per unit of electricity, is often already public. That number alone tells you almost nothing. What the public cannot see is what produced the tariff and what comes with it: the pricing formula, cost components, assumed returns, and any subsidies or tax breaks that shaped the rate; and the non-price obligations that can dwarf the tariff itself, including sovereign guarantees, currency exposure, fuel cost pass-throughs, and force majeure protections that can leave the public paying for a plant that is not generating. It is not the price of the coal going into a power plant that is hidden from the public: it is the components of the price of the electricity coming out of it, and the full range of obligations attached to it.

Four lessons for other emerging markets: 

South Africa’s ruling offers a replicable framework for transparency in energy contracting, but the deeper takeaway is about building systems that do not require years of litigation to get basic contract information to the public.

• Proactive disclosure should be the norm, not the exception. Governments and regulators should require publication of key energy contract terms as a standard condition of all power sector transactions, fuel supply contracts, and PPAs alike, whether the counterparty is a public utility or a private developer. This does not mean disclosing every commercially sensitive detail. Phased disclosure and targeted redaction can protect legitimate confidentiality interests while ensuring that the pricing formulas, risk allocations, and contingent liabilities that directly affect consumer tariffs and public fiscal exposure are public.
• The disclosure obligation should follow the public cost, not the procurement category. The Eskom ruling was made possible by the specific legal framework governing a publicly owned utility’s procurement. But the underlying principle that the public has a right to see contracts concluded in the public interest is not and should not be limited to that narrow context. Policymakers designing transparency frameworks should anchor obligations in economic substance: whenever a contract creates costs, contingent liabilities, or risk exposures that are ultimately borne by electricity consumers or guaranteed by the state, disclosure should be required, regardless of the legal form of the transaction or the ownership structure of the parties.
• Litigation should be a bridge, not the destination. The pattern of civil society groups using available legal tools to force accountability in power contracting is global. In South Africa, litigants sued under the Promotion of Access to Information Act. In Kenya, litigation under environmental law blocked the controversial Lamu coal plant and forced public scrutiny of a project that had been approved with minimal transparency. In the Philippines, consumer groups used procurement law to compel Meralco to subject seven sweetheart coal power deals, negotiated directly with its own subsidiaries, to competitive selection, after the Supreme Court found that without it, there was ‘no assurance of the reasonableness of electricity rates charged to consumers.’ In each case, the litigation succeeded. In each case, it took years and considerable resources. And in each case, it should not have been necessary. The contracts that determine what people pay for energy, whether they cover fuel supply or power purchase, whether they are signed by public utilities or private developers, should be accessible as a matter of public interest.
• Build the analytical capacity to use disclosed information. Securing access to information is only half the battle. Governments, regulators, civil society organizations, and journalists need the technical and commercial expertise to analyze energy contracts, interrogate pricing formulas, and identify the hidden obligations that a headline tariff number alone will never reveal.

Conclusion: Don’t Wait for a Court Case

South Africa’s courts have made a clear point: Eskom’s contracts should be public by default, and any opposing claims of ‘commercial sensitivity’ need evidence to support them. That is a landmark victory for both transparency advocates and electricity consumers.

But it should not take years of litigation to access contracts that determine tariffs and fiscal exposure. Power purchase and fuel supply contracts shape public finances, and they should be disclosed by default.

Other countries are already doing this. Argentina publishes contracts and auction results. Brazil publishes pricing data, and Ghana has a PPA register.

South Africa’s ruling shows the cost of delay. Coal contracts are now being disclosed; the long-term power contracts with private developers, which carry pricing and risk allocation, remain largely out of public view.

The question for policymakers and regulators everywhere is whether they want to close that gap now or wait for a court case to do it for them.