South Africa’s new driver’s licence cards between a rock and a hard place

Transport Minister Barbara Creecy is facing a difficult decision over whether she should cancel South Africa’s controversial driver’s licence card tender, or allow it to continue.

The tender was recently flagged by the Auditor-General (AG) for several irregularities that would typically result in the contract being cancelled and re-issued.

However, the Department of Transport’s (DoT) legal team has advised the minister that cancelling the contract will have serious consequences, creating a dilemma with no obvious solution.

Make or break decision

In early March 2025, following the publishing of the AG’s report, Creecy instructed the DoT to approach the High Court for an order for guidance on how to proceed.

The tender was awarded to French company Idemia in August last year but was swiftly flagged by civil action groups for alleged discrepancies that compromised the selection process.

This prompted Creecy to appoint the AG to investigate the accusations, whereupon it was discovered that several irregularities had, in fact, taken place while deciding on the final bidders.

Despite this, the DoT’s legal team strongly advises that Creecy should not cancel the contract.

Advocate Adam Masombuka, chief director of legal service for the DoT, said cancelling the tender “will lead to an interdict and a protracted review legal process that can take years, compared with appointing the preferred bidder,” reported City Press.

The DoT’s concern is that shutting down the tender will lead to a lengthy court battle with the added risk of an interdict, which could further impact the department’s ability to procure a new driver’s licence card printer for South Africa.

This is not the first time that the tender has been cancelled, either, as it has been binned and re-issued three times as a result of court actions, resulting in a years-long process to obtain the country’s replacement printer.

Pulling the contract at this stage would also mean that the DoT is required to pay a significant cancellation penalty to Idemia.

Even with these considerations, Creecy is allegedly thinking of going against the opinion of her legal team to avoid cancelling the contract, an inside source told City Press.

Masombuka, on the other hand, acknowledged the AG’s report, but questioned whether the department is legally entitled to cancel the tender, and what the consequences of doing so may be.

“The courts have found that in this instance it is not an administrative decision but an executive decision, thus it cannot be reviewed under the auspices of Promotion of Administrative Justice Act (PFMA),” he wrote.

Masombuka argued that the cancellation of the tender requires the use of executive authority.

“The court reasoned that the decision of an organ of state to procure goods or services is an executive act and the reversal of that decision, without more, is of the same nature,” he said.

He further added that a cancellation could be supported, provided there was a review application to set aside the decision taken to award the tender.

“This has to be followed by concrete grounds for why the award has to be cancelled, especially where there are no material irregularities,” states the DoT’s legal opinion.

“Cancellation is encouraged wherein there is the following, among other things: corruption, fronting, fraud, contravention of supply chain processes and the PFMA, leading to unlawfulness and invalidity, and also acts of impropriety and maladministration.”

Irregularities

The AG’s report identified several areas of concern in the Idemia tender.

It found multiple examples of non-compliance, which were due to the following:

• The DLCA’s budget analysis, as part of the demand management process, was inadequate
• Bids not being evaluated according to the evaluation criteria as per the bid specifications
• Inconsistent application of scoring during the bid evaluation process

The bid evaluation committee deviated from assessing the bids using the exact same criteria listed in the bid specifications when evaluating the documents submitted by applicants.

“This ambiguity led to discrepancies identified by the AG, resulting in an unfair and non-transparent procurement process,” it said.

All of the bids also exceeded the budget of R486 million set by the Driver’s Licence Card Account, which was later determined to be out of line with market conditions since the calculation was made using pre-Covid 19 data.

These issues are the main reason why the licence tender is being held up in red tape, which could be delayed even further if it is cancelled and hit with legal proceedings.