Africa-Press – South-Africa. Fidelity Security Services has scored another legal victory over Transnet, with the High Court ruling in the private security giant’s favour.
This comes shortly after a separate legal case in which the High Court also sided with Fidelity and declared a R300 million tender awarded by Transnet to Sinqobile Equestrian Security Services unlawful.
The latest case was an interlocutory application filed by Fidelity, with which it sought to compel Transnet to provide it and the Court Registrar the complete record of the proceedings underlying a tender process.
The background for this application stems from a primary review application that Fidelity instituted in mid-May 2025 under the Promotion of Administrative Justice Act.
The firm applied to the Gauteng High Court to review and set aside Transnet’s decision to award a 60-month national security services contract.
Fidelity was one of the bidders for this contract, but was not awarded the tender.
After Fidelity filed the review application, the firm argued that Transnet became legally obligated to release the full record of its evaluation and adjudication process for this tender within 15 days.
This obligation, Fidelity argued, stems from rule 53(1)(b) of the Uniform Rules of Court, which enables applicants in a court case to obtain certain records to supplement their grounds.
However, this did not happen, and Fidelity argued that Transnet’s failure to do so undermines its right to just administrative action and access to court.
Transnet, in turn, argued that it was allowed to refuse to release the record, as the specific decision Fidelity wants to review does not exist.
The utility claimed that Fidelity mischaracterised the outcome of the tender process by alleging that the firm’s bid was rejected as “non-responsive” or “disqualified”.
According to Transnet, this was not the case, as Fidelity’s bid was not disqualified, but rather evaluated up to stage four of the tender process and ranked accordingly.
Therefore, Transnet argued that, because of this dispute, it was never obligated to dispatch the full tender process record under Rule 53.
The court’s view
In formulating its judgment in this case, the High Court considered the purpose of Rule 53, which is aimed at ensuring that review proceedings are not conducted “in the dark”.
Judge Leonie Windell, who wrote the judgment, explained that the requirement to produce the record is substantive and allows an applicant access to the full facts to formulate their grounds.
She explained that this is distinct from normal discovery in a court case, and the record must include “every scrap of paper” that sheds light on the proceedings.
Ultimately, the court ruled that, since Fidelity’s bid was evaluated and not awarded, an administrative decision inherently took place.
Therefore, regardless of whether Fidelity mischaracterised the nature of the decision, it can only be properly assessed once the record is made available.
In other words, technical challenges to the competence of a review application are premature before the record has been produced.
Based on this, the court ruled that Transnet’s refusal to release the record was unsustainable, as allowing the utility to withhold the information would undermine the Rule 53.
It would also enable decision-makers to unilaterally decide if their conduct is subject to review.
Consequently, the court dismissed Transnet’s objections as premature and ordered the utility to dispatch the complete record within 10 days.
Legal Brilliance CEO Dirk Kotze, whose firm acted for Fidelity in this case, celebrated the victory in a recent social media post.
Kotze said this judgment reinforced a critical principle in administrative law, which states that an organ of state cannot avoid scrutiny by withholding the record or raising technical objections at the outset.
“Proud to act for Fidelity Security in holding decision-makers accountable and ensuring that public procurement processes withstand legal scrutiny,” he said.
Daily Investor reached out to Transnet for comment. Once a response is received, it will be added to this article.
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