Judge Nathan Erasmus dismissed Toto’s application with costs including the costs of two counsels on several grounds, including that Toto could have applied for an interdict in 2021 when the sale was first announced, but decided not to. Photo: Simphiwe Mbokazi.
The government has welcomed a court ruling that could clear the runway for take-off of the sale of South African Airways (SAA) to a private equity partner, Takatso Consortium.
This comes after the Western Cape High Court on Monday dismissed the application with costs by Toto Investments Holdings to interdict the sale of SAA to Takatso.
Toto is a losing bidder in the sale of the 51% majority stake by the government in the struggling national carrier.
Toto required the disclosure of all documents related to the sale on a non-confidential basis, and wanted to interdict the implementation of the transaction pending the finalisation of the review application.
But the court ordered that certain documents should be disclosed on a confidential basis while others should be disclosed on a non-confidential basis.
Judge Nathan Erasmus dismissed Toto’s application with costs including the costs of two counsels on several grounds, including that Toto could have applied for an interdict in 2021 when the sale was first announced, but decided not to.
Judge Erasmus also said Toto had failed to join Takatso as a party, but had cited Takatso’s parent company, Harith General Partners, as a respondent.
The Department of Public Enterprises (DPE) yesterday said the confidentiality regime was suggested by the State-Attorney before the matter went to court, but Toto had rejected it.
Public Enterprises Minister Pravin Gordhan said the judgment paved the way for his department to proceed with the implementation of the SAA/Takatso transaction.
“We welcome the judgment as we have stated in our affidavit that the transaction is governed by confidentiality undertakings and the department was not at liberty to disclose to third parties certain documents related to the transaction, unless under a confidentiality regime,” Gordhan said.
“It is unfortunate that Toto had to press ahead with this ill-fated strategy after we discussed with them at length about the confidential nature of the transaction.”
Though the battle may very well be lost, the war is not over as Toto has launched an application to have the sale to Takatso’s parent company Harith, set aside.
Erasmus ordered that the main review application for overturning the same be placed under judicial case management until the matter is heard in January, 2023.
In terms of the uniform rules of court, the DPE is now compelled to provide non-confidential version of the record of the transaction and the confidential version of the record within 20 days.
The DPE said it would comply with the court directive to provide the record of decision for the transaction.
The department also slammed certain political parties, saying they wanted to intervene in this matter with “nefarious intentions”, and also called on Toto to be transparent with its ownership.
“It is clear this is a political agenda, which is intended to set back and disrupt the reforms of the SOEs. This will facilitate further corruption,” said the DPE.
“Furthermore, the question is who is Toto Investments, who are the people involved and what is their interest in this matter? Toto Investments must be open and transparent of who they are and who they represent,” it said.
Toto Investment Holdings is a black-owned and managed investment company founded by Bongani Gigaba, and is seeking to create a diversified investment base spanning mining and mining inputs, industrials, infrastructure, financial services and agri-business and related business enterprises.
BUSINESS REPORT