Court compels Gordhan to provide confidential documents on SAA sale

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Public Enterprises Minister Pravin Gordhan.
Public Enterprises Minister Pravin Gordhan.
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  • Public Enterprises Minister Pravin Gordhan has been compelled by a court to provide documents on the SAA sale. 
  • On the other hand, the court turned down an application to interdict the sale. 
  • An application to overturn the sale will be heard in January. 
  • Get the biggest business stories emailed to you every weekday, or go to the News24 Business front page

On Monday, the Western Cape High Court ordered that Public Enterprises Minister Pravin Gordhan and the Department of Public Enterprises (DPE) provide Toto Investment Holdings with all confidential documents pertaining to their decision to sell a 51% stake of SAA.

But the court turned down Toto's application to halt the sale of shares of SAA, punishing it with costs. 

Judge Nathan Erasmus ordered that Gordhan and the DPE provide a non-confidential record and a confidential one and that all parties in the litigation be bound by confidentiality agreements. 

Toto Investment Holdings, an unsuccessful bidder for some of the assets of SAA, has launched an application to have the sale to Takatso's parent company Harith set aside. This application is to be heard at the end of January 2023.

In terms of the uniform rules of court, Gordhan and DPE were compelled to provide the record of decision for the transaction. But only a part of the record was handed over to Toto, as Gordhan and his department argued that crucial parts of it could not be disclosed due to commercial sensitivity. They said that some records must remain confidential. 

READ | Gordhan withheld crucial documents on SAA sale, says unhappy bidder

Erasmus ordered that for purposes of the case management of the January hearing, these records must be disclosed within 20 days of Monday's order. They will remain confidential and only parties to the litigation may be present in court when they are aired. 

Monday's order followed an urgent application by Toto last Wednesday to force Gordhan to provide the record. The applicants also asked the court to interdict the sale of shares to Takatso.

Erasmus dismissed the application with costs on several grounds. Among the reasons was that Toto could have applied for an interdict last year when the sale was first announced, but opted not to. Toto had also failed to join Takatso as a party, citing instead its parent company Harith as a respondent. 

Despite the dismissal, Erasmus said that he had the "obligation and authority" to ensure that the process was appropriately managed, leading up to hearing of the main application in January. With the approval of the Judge President of the Western Cape High Court, Erasmus said he would case manage the matter, the first step of which was to regulate the furnishing of confidential documentation under a confidentiality regime.

The Department of Public Enterprises said the ruling paved the way for it to proceed with the implementation of the Takatso transaction.

“We welcome the judgement as we have stated in our affidavit that the transaction is governed by confidentially undertakings and the Department was not at liberty to disclose to third parties’ certain documents related to the transaction unless under a confidentiality regime. It is unfortunate that Toto had to press ahead with this ill-fated strategy after we discussed with them at length about the confidentiality nature of the transaction,” said Gordhan in a statement.

"Furthermore, the question is who is Toto Investments, who are the people involved and what is their interest in the matter? Toto Investments must be open and transparent of who they are and who they represent," the statement reads.

Takatso also welcomed the judgment, which it said "supports the closing of the SAA transaction to achieve government’s sustainability goals for the national carrier without further delay and in an effort to unburden the fiscus."

Takatso said it remains committed to acquiring a 51% interest in SAA from the South African government.

Although the transaction was announced more than a year ago it has not yet closed as another R3,5bn is needed from the fiscus to settle all SAA's outstanding liabilities. Gordhan is hoping that this will be announced in next month's adjustment budget.

This story has been updated with comment from DPE and Takatso


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