Scathing court order against PRASA over passenger safety

Four years after the Western Cape High Court put PRASA on terms to provide proper security for rail commuters, the court has issued another supervisory order to resolve the issue. Archive photo: Ashraf Hendricks

• Four years ago the Western Cape High Court put PRASA on terms to provide proper security for rail commuters but the issue has never been resolved.
• The passenger rail agency has now until the end of November to report back on the status of its new tender process for security contracts.
• The Cape High Court said PRASA’s conduct has “left much to be desired”.

Four years after the Western Cape High Court put PRASA on terms to provide proper security for rail commuters, the issue remains unresolved.

Western Cape Acting Judge Michael Bishop has now granted a further supervisory order giving PRASA until the end of November to complete a new tender process for its security contracts and report back to him on its status.

Since Judge President John Hlophe (now suspended) granted an order in 2019, the dispute between PRASA and existing service providers has come before five other judges. Judge Bishop said this had prolonged the resolution of the dispute. He would now retain the file in the hope that the matter “reaches its final destination as soon as possible”.

“I hope this matter will be finalised by the end of this year,” he said.

The case has its roots in a Constitutional Court ruling that Metrorail and the South African Rail Commuter Corporation (the predecessors to PRASA) had a constitutional obligation to ensure the safety of rail commuters. This was at a time when there had been increased incidents of violent crime on Cape Town trains and at stations.

In 2011 PRASA appointed Sechaba Protection Services, Chuma Security Services, Supreme Security Services and the Vusa-Isizwe Security Group (the security company applicants) on one year contracts to assist with the provision of security.

These contracts were kept in place through month-to-month extensions for seven years.

Then in April 2019 PRASA issued a new tender. The security companies all submitted bids. There were delays in the award and the security companies’ contracts were again extended.

Judge Bishop said they believed quite reasonably that their contracts would continue to be renewed until the tender was finalised.

But on 1 November 2019, PRASA gave them only a few hours notice.

The aggrieved companies went to court, arguing that this was not in the public interest because PRASA would not be able to ensure the safety of commuters.

Judge Hlophe ordered that, pending the finalisation of the tender, PRASA must continue using the services of the security companies.

He also ordered PRASA to report back to the court within 30 days, giving details of the progress of the tender and the details of a safety contingency plan, approved by the Railway Safety Regulator.

PRASA, however, didn’t file that report on time. It also cancelled the tender.

While it continued to employ the security companies, at times it did not pay them, resulting in further court skirmishes.

In one, in July 2020, PRASA finally filed the report, giving excuses for the delay.

The bottom line was that while PRASA had done substantial planning to improve its security, it conceded it could not, at that stage, replace the security companies.

Judge Bishop, in his judgment handed down on 1 November, said “things went quiet”, until PRASA filed the application before him in June this year for a “discharge” of Hlophe’s supervisory order.

It wanted to terminate the security contracts on 60 days notice.

PRASA said it had now complied with the supervisory order and it was about to put out a new tender.

It had received approval from the Regulator, it claimed.

The security companies strongly opposed this, arguing that the application was premature and commuters safety was again at risk.

The judge said that during argument PRASA had accepted that court supervision was necessary until the 2023 tender was finalised, and that the security companies services would be retained until then.

“This concession was well-made,” the judge said, noting that it was ultimately common cause that PRASA had not satisfied the conditions of the supervisory order.

He said this was a constitutional matter. The justification for the supervisory order was not, primarily, the service providers’ commercial interests, but commuters’ constitutional rights.

Supervision was often a far more effective means to ensure compliance in constitutional cases.

However, in this matter it had failed, largely because it had been handled by too many different judges over the years and because compliance was in the hands of the “self-interested” security companies who had no incentive in forcing their own replacement.

Judge Bishop said while PRASA’s conduct “left much to be desired”, he could not find that it had breached its constitutional obligations.

He said, however, that it had approached the court prematurely.

He ordered PRASA to file reports on the status of the 2023 tender by the end of November, along with documents confirming the approval of the Railway Safety Regulator.

The security companies have until mid-December to file any affidavits in response to this. Judge Bishop said he would keep the file and, once all the affidavits were in, he would consider whether or not to terminate the supervision order.

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