Pravin Gordhan says he will not be bullied into sale of Mango
Public enterprises minister says he will not be forced to act ‘in a manner that will compromise the work of government’
Public enterprises minister Pravin Gordhan has insisted in response to a Pretoria high court judgment ordering him to decide on a Mango disposal application within 30 days that he has a duty to apply the law and will not be bullied.
He said in a statement on Tuesday that he is studying the judgment by acting judge Moses Phooka, who ruled that if Gordhan fails to make a decision within the stipulated time period on the application by business rescue practitioner Sipho Sono for the sale of Mango, then Sono can legitimately assume in terms of the law it has been approved.
Phooko found that Gordhan’s failure — lasting several months — to make a decision in terms of the Public Finance Management Act (PFMA) was “unlawful and constitutionally invalid”.
The status of the business rescue practitioner’s application “cannot eternally remain in limbo”, the judge said. “I do not see how a delay in taking a decision could be considered as rational.
“The failure to take a decision within a reasonable time is an infringement of the fundamental right to just administrative action,” Phooko said, referring to the constitutional provision that enjoins functionaries within organs of state to “perform diligently and without delay all constitutional obligations”.
In his statement Gordhan said he “will not be cowed to submit to pressure that certain elements, with zero regard for public interest, sought to exert on him and the department regarding the business rescue process of Mango Airlines, a subsidiary of SAA”.
“My duty as the executive authority is to safeguard the interests of South Africans. At no point will I abandon my fiduciary responsibility to ensure that any decision that is taken regarding the future of Mango is consistent with the prescripts of the law and is in the best interest of the public,” said Gordhan.
He said the PFMA requires him to request further information about the proposed sale to make a judiciously sound decision.
“I will not be bullied to act in a manner that will compromise the work of government in this regard,” Gordhan said. “While we respect the decision of the court, the department will ensure that we follow all the prescripts of the law in terms of how we execute on our responsibility to put all our state-owned companies on a stable footing.”
Low-cost airline Mango went into business rescue in July 2021 and an unnamed consortium has been selected to purchase it, but Gordhan’s delay in reaching a decision on the sale threatens to subvert it.
The consortium has been waiting since November 2022 for approval of the deal. If the transaction fails, Mango will have to be wound down in terms of its business rescue plan.
Sono claims Gordhan wanted to see the business case of the chosen investor before making a decision. But he is concerned about sharing such information, as Mango is likely to compete with its parent company, state-owned SAA.
Phooko rejected Gordhan’s contention the 30 days provided for in the PFMA for the minister to take a decision does not apply until he is “satisfied” with the information provided to him. Gordhan’s counsel argued the 30-day requirement did not apply as the minister had requested more information on December 21 2022.
But Phooko ruled in the subsequent reply to this request by Sono on January 19, saying there would be no further information whatsoever forthcoming, kick-starting the statutory prescribed 30-day period, which ended on March 1.
Gordhan contended the information supplied to him was inadequate. The missing information concerned the fact the board of SAA should have considered other options for the disposal of Mango, a comprehensive due-diligence report on the bidder and the potential loss to SAA if the disposal went through. Sono argued that this was not required and that there was no basis for Gordhan to demand further information.
Gordhan and the department of public enterprises argued that a declaratory order compelling the minister to take a decision about an incomplete and unsatisfactory application was without merit. They also contended that the court should be slow to interfere with statutory powers that are exclusively in the domain of the executive and legislative branches of government unless such intrusion is sanctioned by the constitution.
DA MP Alf Lees called Gordhan’s bullying claims “simply outrageous”.