Court: PRASA must ensure security on trains before cancelling security contracts

PRASA has been ordered to produce progress reports on the provision of security to Western Cape commuters on its passenger rail lines.

PRASA has become notorious for its poor service. In the years since PRASA took over from the Main Line Passenger Services (MLPS) in 2008, the service has lost nearly 4 million passengers and now serves only around 12,000, and is struggling to attract long-distance customers due to a lack of trust. Several routes, including Cape Town-East London, are currently not operational.

In 2009, Prasa operated 21 routes and 6,000 long-distance trips, but by 2021, it had only 99 long-distance trips, and its revenue on the MLPS dropped from R228 million in 2010 to R2.8 million, a 98% loss.

While this is can be blamed on vandalism, metals theft, ageing rail stock and lack of skilled employees due to racial discrimination, the prevalence of union violence and ordinary violent crime on its lines have also driven down rail use.

Lack of security has led to numerous and regular acts of vandalism, some of which have claimed the lives of commuters, as when striking unions burn train carriages to pressure the service provider into increasing benefits.

The case has a history dating back to 2001 when a court ruled that PRASA had a duty to ensure commuter safety on its trains. In 2019, PRASA decided to terminate the security contracts of the Applicants and issued a new tender for security services. The Applicants (Sechaba Protection Services, High Goals Investments, Chuma Security Services, Supreme Security Services, and Vusa-Isizwe Security) sought a court order to continue providing services until the new tender was finalized, citing public safety concerns.

In the original judgment, PRASA was given 30 days to provide an affidavit detailing progress on these fronts, with provisions for explaining any delays. However, despite the expectation that PRASA would resolve the situation in a few months, the case has dragged on for four years, with the Applicants still providing services under their 2011 contracts.

Additional court orders were granted by Judges Ndita, Gamble, and Le Grange, demanding payment and addressing PRASA's compliance issues. PRASA's attempts to launch a new tender process were temporarily halted by Judge Le Grange, who confirmed the universal application of the Hlophe order. PRASA filed an affidavit in July 2020, detailing its security measures and explaining delays due to administrative changes and COVID-19.

Despite significant security planning, PRASA had not replaced the Applicants' services, as required by the Hlophe order. The return date for earlier orders in August 2020 led to Judge Hack's decision, ordering payment and interdicting emergency procurement but not finding PRASA in contempt or declaring breaches of court orders or constitutional obligations.

The current court case arose when PRASA issued a new tender for security services and cancelled the existing contract, despite a court order preserving their contracts.

PRASA has now been given until the end of November to complete the new security tender process and report on its status. Nevertheless, PRASA's conduct has not been found to breach its constitutional obligations, which include:

·        Section 165(5), which stipulates that a court order "binds all persons to whom and organs of state to which it applies."

·        Section 195(1)(f), which demands that the public administration "must be accountable."

·        and Section 237, which underscores that "[a]ll constitutional obligations must be performed diligently and without delay."

The constitutionality of PRASA’s extreme failures were not in question, largely due to rules of court – since judge Hack had not found PRASA guilty of breaching their constitutional obligations in his August 2020 judgment, the relitigation of this point was considered outside the purview of the current court session.

The judge ordered PRASA to submit reports on the status of the 2023 security tender by the end of November, along with documents confirming approval from the Railway Safety Regulator.

PRASA must now submit an affidavit by 30 November 2023, providing information on their procurement process. The Applicants can respond by 14 December 2023. The Court will then decide whether to end its supervision and let PRASA terminate the Applicants' services or issue further orders.

PRASA was also ordered to pay the Applicants’ costs.

Cape Town Mayor Geordin Hill-Lewis recently supported a court application by civil society organization Unite Behind, which sought to compel PRASA to agree on a Cape Town-level service-level plan.

Hill-Lewsi ultimately aims to have the Passenger Rail Agency of South Africa (Prasa) hand over control of the rail service to the municipality. If successful, the application would grant the City an oversight capacity on local rail operations.

‍