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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:
TRANSNET SOC LIMITED APPLICANT
And
FIDELITY SECURITY SERVICES (PTY) LTD RESPONDENT
JUDGMENT
WINDELL J:
[1] The applicant, Transnet SOC Limited (‘Transnet’) (the first respondent in the court
a quo), seeks leave to appeal against my judgment and order delivered on 7 April 2026.
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES / NO
(3) REVISED: YES / NO
2 September 2026 __________________________
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In that judgment Transnet was directed, in terms of rule 53(1)(b) of the Uniform Rules of
Court, to dispatch the record of the proceedings sought to be reviewed in the main
application.
[2] Transnet contends, principally, that the judgment is inconsistent with the
Constitutional Court’s decision in Famous Idea Trading 4 (Pty) Ltd t/a Dely Road Courier
Pharmacy v Government Employees Medical Scheme and Others (‘Famous Idea ’),1
which was handed down before my judgment. It submits that there are reasonable
prospects that another court would reach a different conclusion and that there are, in any
event, compelling reasons for the appeal to be heard.
[3] It is necessary to explain why Famous Idea was not considered in my judgment.
Famous Idea was delivered on 11 February 2026, after the hearing of this matter on 26
January 2026 but before judgment was delivered on 7 April 2026. After it was handed
down, Transnet’s attorneys addressed correspondence to my chambers drawing the
judgment to my att ention. That correspondence did not come to my attention before
judgment was delivered. I therefore did not have the benefit of considering Famous Idea
when preparing the judgment.
[4] Since the judgment was delivered, there have been material developments.
Because the order is int erlocutory in nat ure, its operation and execution were no t
automatically suspended by the application for leave to appeal. Transnet accordingly
1 Famous Idea Trading 4 (Pty) Ltd t/a Dely Road Courier Pharmacy v Government Employees Medical
Scheme and Others (CCT 266/24) [2026] ZACC 5; 2026 (4) BCLR 291 (CC) (11 February 2026).
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brought an urgent application in terms of s 18(3) of the Superior Courts Act 10 of 2013
for an order suspending the operation and execution of the order of 7 April 2026 pending
the determination of the application for leave to appeal and any ensuing appeal . That
application was opposed by Fidelity and was dismissed by Du Plessis J on 2 May 2026.
[5] In dismissing the application, Du Plessis J considered Transnet's reliance on
Famous Idea and held that the objection raised by Transnet was not the jurisdictional
objection with which the Constitutional Court was concerned in that matter. The court also
rejected Transnet's contention that disclosure of the record would cause it irreparable
harm.
[6] Following the dismissal of the s 18(3) application, Transnet complied with the order
of 7 April 2026 and dispatched the Rule 53 record. Fidelity has since delivered a notice
of intention to amend its notice of motion, and the main review proceedings are well under
way.
[7] These developments raise the question whether there remains a live issue capable
of determination on appeal. Section 16(2)(a)(i) of the Superior Courts Act provides that,
when at the hearing of an appeal the issues are of such a nature that the decision sought
will have no practical effect or result, the appeal may be dismissed on that ground alone.
[8] A matter is moot when there is no longer a live dispute between the parties which
would be practically affected or resolved by the court's decision. It is also moot where the
decision would be of academic interest only. Mootness is not an absolute bar and a court
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may nevertheless determine a moot appeal where the interests of justice require it to do
so. These principles were recently restated by the Constitutional Court in Famous Idea.2
[9] An appeal can no longer prevent the disclosure which Transnet sought to avoid,
nor can it restore the position which existed before the record was produced. The question
whether Transnet should have been compelled to produce the record therefore no longer
presents a live controversy capable of producing any practical effect between the parties.
[10] Transnet submits that the appeal should nevertheless be entertained because it
raises important questions concerning the proper application of Rule 53 and Famous
Idea.
[11] I am not persuaded that the interests of justice require an appeal in this matter.
The legal principle upon which Transnet relies has already been authoritatively
determined by the Constitutional Court in Famous Idea. There is therefore no uncertainty
in the law requiring resolution by an appeal court in this matter.
[12] There is, moreover, an important distinction between Famous Idea and the present
matter. In Famous Idea, GEMS expressly challenged the review jurisdiction of the High
Court. It contended that it was not an organ of state, was not exercising public power
when it made the impugned decision and that its decision was therefore not susceptible
2 At paras 36 and 37; Centre for Child Law v The Governing Body of Hoërskool Fochville [2015] ZASCA
155; [2015] 4 All SA 571 (SCA); 2016 (2) SA 121 (SCA) para 11 ; Laser Transport Group (Pty) Ltd and
Another v Elliot Mobility (Pty) Ltd and Another (835/2018) [2019] ZASCA 140 (1 October 2019); Police and
Prisons Civil Rights Union v South African Correctional Services Workers’ Union [2018] ZACC 24 para 44;
Normandien Farms (Pty) Ltd v South African Agency for Promotion of Petroleum and Exploitation (SOC)
Ltd [2020] ZACC 5 paras 47-48.
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to review. The parties expressly agreed that the jurisdictional issue should be determined
before the application to compel production of the record.
[13] The Constitutional Court held that where the jurisdiction of the court to determine
a review is contested, that issue must be determined before the court makes other orders
in the review. It also held that a Rule 6(5)(d)(iii) notice is competent in Rule 53
proceedings and may be used to raise a dispositive legal question at the outset.
[14] That was not the issue before this Court. Transnet did not contend that this Court
lacked jurisdiction to review its tender process, that Transnet was exercising private
power, or that the tender decision was, by its nature, incapable of review under PAJA. Its
case was that the particular decision identified by Fidelity — that its bid had been
adjudicated as non-responsive or disqualified — did not exist.
[15] It was common cause that Fidelity’s bid had been evaluated and that the tender
had not been awarded to it. The dispute concerned whether the decision was properly
characterised as a disqualification or non-responsive decision, or as an outcome reached
at a later stage of the evaluation process. I accordingly found that the dispute concerned
the proper characterisation of the decision taken within the tender process, rather than
the existence of administrative decision-making susceptible to review.
[16] Famous Idea is also distinguishable in another respect. It concerned procurement
by a medical scheme which was found to involve a commercial decision and the exercise
of private power. The Court in that matter expressly distinguished private procurement
from a public procurement process, where tenderers know that their information may be
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disclosed should the decision be reviewed. The present matter concerns a public tender
conducted by Transnet.
[17] These distinctions are also relevant to Transnet's reliance on the disclosure of
competing tenderers' information as a reason why the appeal should nevertheless be
heard. That concern was raised in the s 18(3) proceedings and was found insufficient to
establish irreparable harm. More importantly, the disclosure has now occurred. Whatever
confidentiality interest Transnet sought to protect by withholding the record cannot now
be restored through an appeal.
[18] In these circumstances, the requirements of section 17(1) of the Superior Courts
Act have not been met. Leave to appeal should therefore be refused.
[19] In the result the following order is made:
1. The application for leave to appeal is dismissed.
2. The applicant is ordered to pay the costs of the application for leave to appeal,
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 2 September 2026.
APPEARANCES
For the applicant: M J Ramaepadi SC
K. Kgatla
Instructed by: Mkhabela Huntley Attorneys
For the respondent: S Grober SC
Instructed by: Dirk Kotze Attorneys INC.
Date of hearing: 21 July 2026
Date of judgment: 2 September 2026