The Supreme Court of Appeal (SCA) has dealt a blow to minority shareholders in Airports Company SA, ruling against them in a drawn-out legal battle over shares they purchased in 1998.
But they say the battle is not over and they are considering their legal options, including the possibility of approaching the Constitutional Court.
The minority shareholders, which include Old Mutual-controlled Futuregrowth and other parties, say they were expecting to be able to sell their shares once the company was listed on the JSE – but this never occurred.
They are also unhappy because they say they have not been able to get fair value for their shares.
In August 2017, in terms of a settlement agreement between the minority shareholders and ACSA – which was confirmed by a court order – an independent valuator determined a fair value of R77.92 per ACSA share. ACSA, however, made a settlement offer of R44.55 per ACSA share, which the minorities declined.
ACSA objected to the valuation of R77.92 and applied for rescission of the court order based on the settlement agreement. ACSA and government claimed there was a lack of authority for their representatives to conclude the agreement. The high court agreed with government and ACSA and rescinded the settlement agreement in July 2020.
In turn, the minority shareholders appealed to the SCA in November last year in a bid to have the settlement agreement, with the valuation of R77.92 per share, acknowledged again.
The SCA, however, has now ruled that there was just cause for the high court to have rescinded the court order which validated the settlement agreement.
The SCA found that the ACSA board had not passed a resolution adopting the settlement agreement. Similarly, it was found that the minister of transport also never consented to it.
ACSA currently claims the fair value is R36.36 per share.
Following the ruling, ACSA said the company was not in a position to decide on the instrument or mechanism used for minority shareholders to exit their investment. Gopolang Peme, acting group manager: communications of ACSA, said the company had, both now and during past engagements with minority shareholders, provided "material information" to help the parties involved to decide on the company's valuation.
Alun Frost, a director of Griffin Advisors – an advisor to one of the entities invested in ACSA, Oppressed ACSA Minority 1 (previously African Harvest Strategic Investments), expressed disappointment, saying minority shareholders were "trapped in this ACSA shareholding for 24 years", adding that they had "wasted" several years because of "misrepresentation by ACSA and government".