Prasa’s bid to invalidate contracts worth about R4-billion collapsed on Wednesday, when the high court in Pretoria dismissed the rail agency’s application on a technicality.
This is a stinging defeat in the highly publicised case over the controversial contracts with security company Siyangena Technologies that led to public consternation and raised the hackles of MPs.
The contracts awarded to Siyangena Technologies were declared unlawful by the public protector in her damning report titled Derailed. The company was contracted in to supply and install integrated security access management systems at various Passenger Rail Agency of South Africa (Prasa) stations.
Board chair Popo Molefe publicly stated that he would root out the corruption in the parastatal, blaming his predecessors and the rail agency’s infamous chief executive Lucky Montana for its ill fortunes.
In February last year, Prasa approached the courts to declare the contracts unlawful, alleging the tender was rigged to fit Siyangena Technologies and “materially disadvantage its competitors”.
Molefe also alleged that Montana had received kickbacks of about R4.9-million for hammering through the contracts on behalf of Siyangena Technologies. He said there was a “calculated effort” by Montana and former and current employees of Prasa to unlawfully award the tenders to the company.
Delivering judgment on Wednesday morning, Judge Roland Sutherland found that Prasa had come to court too late with its case, not keeping to the “180 days rule” as prescribed by sections 7(1) and 9 of the Promotion of Administrative Justice Act 3.
This followed a day’s hearing on whether the application was brought in time. The merits of Prasa’s case before court – whether the contracts were unlawful – were not even argued.
Sutherland said Prasa misinterpreted the Act; it should have launched their application within 180 days “from the date that it is aware of the decision (to award the alleged unlawful tenders) and the reasons therefore”.
Prasa’s counsel, Vincent Maleka SC, argued on Tuesday that Prasa’s current board, headed by Molefe, did not know of the impropriety until the public protector’s Derailed report was published. This was opposed by Siyangena Technologies’ counsel, Werner Luderitz SC.
Sutherland said Prasa further erred in not applying to court to extend the 180 days, but rather asked the court to condone its non-compliance.
When an extension of the 180 days rule is asked for, the litigants must show that it is in the “interests of justice” to grant an extension.
Said Sutherland: “There is no account of the progress of the projects which were the subject matter of the tenders, the prejudicial consequences of successful review are not addressed and the public interest in getting the projects completed is not addressed.”
In the absence of this, Sutherland found that there was “no application before court as contemplated by section 9” of the Promotion of Administrative Justice Act and that he “does not have the authority to entertain the review application”.
Sutherland clarified that his judgment on the timing of the case “must not be interpreted to mean that this judgment purports to find that Prasa has no case to advance”.