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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NUMBER: 2025/067097
In the matter between:
FIDELITY SECURITY SERVICES (PTY) LTD APPLICANT
And
TRANSNET SOC LIMITED FIRST RESPONDENT
NOMGWENYA SECURITY AND TRADING CC SECOND RESPONDENT
MARUMOFASE SECURITY CC THIRD RESPONDENT
KYA GUARDS (PTY) LTD FOURTH RESPONDENT
SILVER SOLUTIONS 1522 CC FIFTH RESPONDENT
MABOTWANE SECURITY SERVICES CC SIXTH RESPONDENT
MAXI PHUMELE SECURITY (PTY) LTD SEVENTH RESPONDENT
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES / NO
(3) REVISED: YES / NO
7 April 2026 ___
DATE SIGNATURE
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IDLANGAMANDLA SECURITY PROTECTION
AND PROJECTS CC EIGHTH RESPONDENT
BILANE SECURITY CC NINTH RESPONDENT
Heard: 26 January 2026
Delivered: 7 April 2026
Headnote: Civil procedure — Rule 53 — application to compel record — dispute whether
impugned decision exists — common cause tender was not awarded to applicant —
dispute as to characterisation of decision — Rule 53 enables applicant to obtain record
and supplement grounds — technical objections premature — no basis to withhold record
— application granted.
JUDGMENT
WINDELL J:
Introduction
[1] This is an interlocutory application in terms of rule 53(1)(b) of the Uniform Rules of
Court. The applicant, Fidelity Security Services (Pty) Ltd, seeks to compel the first
respondent, Transnet SOC Limited, to dispatch to the Registrar of this Court and to the
applicant the complete record of the proceedings underlying a tender process.
[2] The tender forms the subject of a pending review application brought in terms of
the Promotion of Administrative Justice Act 3 of 2000 , in which the applicant seeks to
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review and set aside the first respondent’s decision in relation to tender number
TNPA/2024/01/0019/53618/RFP. The record sought includes documents, reports,
minutes, recordings, bid submissions and related materials pertaining to the evaluation
and adjudication of the tender.
Background facts
[3] The review was instituted on 13 May 2025. In those proceedings , the applicant
seeks to review and set aside the first respondent’s decision to reject its bid as non -
responsive in respect of a tender for the provision of national security services for a period
of 60 months.
[4] The applicant contends that, upon service of the review application, the first
respondent became obliged, in terms of rule 53(1)(b), to dispatch the record of the
proceedings within 15 days. It is common cause that this was not done. Instead, the first
respondent raised objections to the adequacy of the founding affidavit and disputed the
existence of a reviewable decision.
[5] The applicant contends that these objections do not justify withholding the record.
It submits that the obligation to dispatch the record arises upon the institution of review
proceedings and that access to the record is essential to enable it to properly formulate
and, if necessary, supplement its grounds of review.
[6] The applicant further submits that the refusal to provide the record undermines
both its right to just administrative action and its right of access to court, and that it has
been prejudiced in prosecuting the review.
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The first respondent’s case
[7] The first respondent opposes the application on several grounds . Its primary
contention is that the review does not trigger rule 53(1)(b) because the decision identified
by the applicant in its main review application does not exist. According to the first
respondent, the applicant incorrectly characterise d the impugned decision as one in
which its bid was adjudicated as non -responsive or disqualified. It contends that the
applicant’s bid was in fact evaluated up to stage four and ranked accordingly, and that no
disqualification decision was taken.
[8] On this basis, the first respondent submits that there is no decision capable of
review as pleaded, with the result that rule 53 is not engaged and no obligation arises to
dispatch the record. It accordingly contends that the review application is defective for
non-compliance with rule 53(2) and that the present application constitutes an
impermissible attempt to obtain general discovery under the guise of rule 53.
Evaluation
[9] The dispute between the parties concerns whether the decision relied upon by the
applicant has been sufficiently identified for the purposes of invoking rule 53, or whether,
as the first respondent contends, the application is defective at the threshold.
[10] The purpose of rule 53 has been authoritatively described as ensuring that review
proceedings are not conducted ‘in the dark’, and that both the applicant and the court are
placed in possession of the material necessary to assess the lawfulness of the decision-
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making process.1 The requirement to produce the record is thus not merely procedural
but substantive in nature. It enables an applicant to interrogate the record, to formulate
and, if necessary, reconsider its grounds of review, and to supplement its founding
affidavit in terms of rule 53(4).
[11] This is so because an applicant will, at the stage of launching review proceedings,
seldom be in possession of the full information underlying the impugned decision. Rule
53(4) recognises that position and expressly permits an applicant to supplement its
founding affidavit once the record has been produced. It follows that an applicant is not
required to formulate its case with precision or finality at the outset. To permit a
respondent to withhold the record on the basis that the applicant has mischaracter ised
the decision would undermine the purpose of Rule 53 and frustrate the proper ventilation
of review proceedings.
[12] For that reason, the scope of the Rule 53 record is not confined to material strictly
relevant to the case as initially pleaded. In Mamadi and Another v Premier of Limpopo
Province and Others,2 with reference to Helen Suzman Foundation v Judicial Service
Commission,3 the Constitutional Court has emphasised that the rule 53 process differs
fundamentally from ordinary discovery. The Court held:
1 Jockey Club of South Africa v Forbes 1993 (1) SA 649 (A) at 660D–E; Helen Suzman Foundation v Judicial
Service Commission 2018 (4) SA 1 (CC) at 9F.
2 2024 (1) SA 1 (CC).
3 Helen Suzman Foundation v Judicial Service Commission 2018 (4) SA 1 (CC).
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‘[35] . . . the process under rule 53 is different from that under rule 35. Rule 53 provides
access to a far greater ambit of documents than normal discovery under rule 35. As this
Court explained in Helen Suzman Foundation:
“[T]he rule 53 process differs from normal discovery under rule 35 of the Uniform
Rules of Court. Under rule 35 documents are discoverable if relevant, and
relevance is determined with reference to the pleadings. So, under the rule 35
discovery process, asking for information not relevant to the pleaded case would
be a f ishing expedition. Rule 53 reviews are different. The rule envisages the
grounds of review changing later. So, relevance is assessed as it relates to the
decision sought to be reviewed, not the case pleaded in the founding affidavit.”
[36] The rule 53 record contains “all information relevant to the impugned decision or
proceedings” which includes “every scrap of paper throwing light, however indirectly, on
what the proceedings were” and the record of the deliberations of the relevant d ecision
maker. The fundamental importance of the rule 53 record was explained by this Court
in Turnbull-Jackson:
“Undeniably, a rule 53 record is an invaluable tool in the review process. It may
help: shed light on what happened and why; give the lie to unfounded ex post facto
(after the fact) justification of the decision under review; in the substantiation of as
yet not fully substantiated grounds of review; in giving support to the decision
maker’s stance; and in the performance of the reviewing court’s function.”’
[13] The record accordingly includes all material that may shed light on the decision -
making process.
[14] A similar approach was adopted in Cloete Murray NO v Ntombela; In re: Ntombela
v Cloete Murray NO.4 In that matter, the applicants instituted review proceedings in terms
4 [2022] 3 All SA 689 (FB) confirmed on appeal by the Supreme Court of Appeal in Murray and Others NNO
v Ntombela 2024 (4) SA 95 (SCA).
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of rule 53. Before any record had been filed, the liquidators delivered a notice in terms of
rule 6(5)(d)(iii), challenging the legal competence of the review application. The applicants
then brought an interlocutory application to set aside that notice and to compel
compliance with rule 53(1)(b).
[15] The court held that it was not open to the liquidators to raise such a challenge at
that stage, as the applicants had not yet been afforded the opportunity to complete the
rule 53 process. It further held that the question whether the review was the correct and
appropriate mechanism to challenge the impugned decision could only properly be
determined in the main application once the record had been produced. The notice in
terms of rule 6(5)(d)(iii) was accordingly held to be premature.
[16] It is common cause that the applicant’s bid was evaluated and that the tender was
not awarded to it. That necessarily entails administrative decision -making within the
tender process. The dispute between the parties concerns the proper characterisation of
that decision, rather than its existence.
[17] The applicant has identified, on its version, conduct and a decision within the
tender process which it seeks to impugn. Whether that decision is correctly characterised
as one of disqualification or as an evaluation outcome is a matter that can only properly
be assessed once the record has been made available.
[18] To uphold the first respondent’s contention would permit a decision-maker to avoid
its obligation to produce the record by asserting that the applicant has mischaracterised
the decision or that no reviewable decision exists. That would undermine the purpos e of
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rule 53 and risk placing the decision -maker in the position of determining, unilaterally,
whether its conduct is susceptible to review.
Conclusion
[19] For these reasons, the first respondent’s refusal to dispatch the rule 53 record
cannot be sustained. The technical objections raised by the first respondent are
premature and do not justify non-compliance with rule 53(1)(b).
[20] In the result the following order is made:
1. The first respondent is directed, in terms of rule 53(1)(b) of the Uniform Rules of
Court, to dispatch to the Registrar of this Court and to the applicant the record of the
proceedings sought to be reviewed and set aside in the main application, within 10 days
of this order.
2. The record shall include all documents and materials relevant to the decision-making
process relating to tender number TNPA/2024/01/0019/53618/RFP.
3. The costs of this application are to be paid by the first respondent, including the costs
of senior counsel, where so employed, on Scale B.
________________
L. WINDELL
JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION, JOHANNESBURG
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Delivered: This judgement was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the Parties/their legal
representatives by email and by uploading it to the electronic file of this matter on
CaseLines. The date for hand-down is deemed to be 7 April 2026.
APPEARANCES
For the applicant: S Grober SC
Instructed by: Dirk Kotze Attorneys
For the respondent: M J Ramaepadi SC
K. Kgatla
Instructed by: Mkhabela Huntley Attorneys INC.
Date of hearing: 26 January 2026
Date of judgment: 7 April 2026