The National Union of Metalworkers of SA (Numsa) has accused retiring Public Enterprises Minister Pravin Gordhan and his department of bungling the sale of the low-cost state-owned airline and risking its members’ livelihoods.
Gordhan has applied for special leave to appeal North Gauteng High Court acting judge Moses Phooko’s September 2023 ruling ordering the minister to decide business rescue practitioner (BRP) Sipho Sono’s application in terms of the Public Finance Management Act (PFMA) to sell Mango.
The PFMA requires the accounting authority of a state entity seeking to dispose of its significant shares, to apply to the Minister of Public Enterprises for approval.
According to Numsa, Gordhan was late in filing his Supreme Court of Appeal (SCA) bid to challenge Acting Judge Phooka’s judgment, which declared the failure to make a decision unlawful and constitutionally invalid, and directed him to make a decision within 30 days.
Gordhan explained that the lateness of his SCA application was not in flagrant disregard of its rules.
In the union’s papers, it states that the suspension of the order of the court a quo (high court) inter alia directly affects the rights of Numsa’s members, who were formerly employed by Mango, a right of preferential re-employment, which only vests in the event that Mango is purchased by a third party investor.
”This means that the suspension of the court a quo’s order will leave Numsa’s members unemployed and with little hope of securing further employment, in the circumstances where the court a quo correctly found that the Minister of Public Enterprises’ failure to determine section 54(2) application (of the PFMA) was unlawful,” Numsa explained.
They continued: “The Minister of Public Enterprises has once again failed to determine the section 54(2) application and fortuitously seeks to rely on his legal representative’s misunderstanding of the SCA rules in order to, once again, avoid determining the section 54(2) application and prevent the BRP and Mango from relying on section 54(2) of the PFMA deeming provision, as directed by the court a quo. This cannot be permitted.”
Gordhan wants the execution of Acting Judge Phooko’s order and judgment to be stayed pending the determination of his special application (petition) to the SCA.
In addition, he wants Mango and Sono to be interdicted from selling and/or finalising the investor process with SA Airways, pending the finalisation of his SCA appeal.
He also wants SAA to be interdicted from selling and/or finalising the investor process with Mango and Sono until the SCA appeal process is finalised.
Gordhan has delayed approving Mango’s sale for more than a year and informed Sono that the section 54(2) application was incomplete and that he requires more information before making a decision and that only SAA is empowered and responsible for the submission and management of the sale of its subsidiary.
On February 27, parties involved in the matter agreed to remove it from the urgent high court roll and were directed by Judge Soraya Hassim to file their replying affidavits to the SCA.
By March 28, Gordhan must file a supplementary affidavit and re-enrol the matter for the week of April 2.
Mango and Sono were ordered to undertake not to sign any agreement for the sale on SAA’s shares in the low-cost airline before April 5.