The legal dispute over rail safety and security contracts between the Passenger Rail Agency of South Africa (Prasa) and three security firms has finally come to a head.
The parties have welcomed the latest Western Cape High Court judgment which gave Prasa until this month to provide an update on the progress of a fresh tender for security services.
In a supervisory order, Western Cape Acting Judge Michael Bishop said: “After four long years, it is almost possible for the parties to disembark, and move on, unencumbered by the Hlophe JP order.
But it is not quite there. (Prasa) shall file an affidavit on or before November 30 that: Reports on the status of its procurement process in bid number HO/SEC/002/05/2023, and in particular by what date any security service provider appointed in terms of that tender will be able to commence providing security services in the Western Cape.”
The matter has been ongoing for several years, after three security firms hauled Prasa to court in a bid to amend an order directing the parastatal to continue using their services until “alternative measures were in place”.
The companies, Sechaba, Chuma and Supreme Security Services, had accused Prasa of using “loopholes” in the 2019 court order by Judge President John Hlophe, which also instructed Prasa to conduct a new security tender procurement process as the entity had apparently procured the services of another security company along the central line.
The issue around rail safety was sparked by an earlier case decided in 2003.
In 2001, a group of concerned Cape Town rail commuters launched an application to compel the state entities responsible for urban commuter railways to ensure that commuters were safe when travelling by train.
The court at the time declared that Metrorail and the South African Rail Commuter Corporation Ltd (SARCC), now Prasa, had a duty to ensure commuter safety.
Prasa then relied on several companies in the Western Cape to assist it to fulfil its constitutional duty to take reasonable measures to ensure the safety of its commuters.
Those companies included Sechaba, Chuma and Supreme Security Services, who were initially appointed to provide security services in 2011 for one year.
That year came and went, but the companies were kept in place through regular month-to-month extensions of their contracts for nearly seven years, until 2018 when Prasa decided it was time for a change.
In April 2019, it issued a new tender for security services and all three firms submitted bids.
However, following delays, the tender remained unawarded.
In November 2019, Prasa told the security firms to stop their services.
They asked for clarification, but Prasa insisted the contracts were done.
Despite this, they continued sending their employees to work because the 2019 tender had not been awarded, and there were no other plans to bring in new service providers.
The security firms then approached the courts to resolve the deadlock.
Prasa opposed, largely on contractual grounds. It argued that it was entitled to cancel the contracts, and that the court had no business preventing it from doing so.
Following further court disputes on the matter between 2020 and 2021, around June this year Prasa filed an application for the “discharge” of the Hlophe order.
Its argument was that it had demonstrated compliance and satisfied the requirement to obtained approval from the regulator in terms of safety permits, and that it should therefore be allowed to terminate the services of the three companies on 60 days’ notice.
Prasa further said it would shortly replace them through a 2023 tender and had mechanisms to ensure safety in the interim.
The companies, however, opposed. They argued that, properly interpreted, the Hlophe order required Prasa to demonstrate both that it had implemented the tender and obtained the regulator’s approval for its safety plan.
In the latest judgment, Judge Bishop further found that after Prasa files the necessary documents, the companies will have an opportunity to respond, after which he will consider finally terminating judicial supervision.
Prasa spokesperson Andiswa Makanda said they noted the judgment.
“The business is finalising the award of the security tender. We therefore welcome the supervisory order as it is in line with the draft order as proposed by all parties.”