IN THE HIGH COURT OF SOUTH AFRICA - Southern African …

1 1 IN THE high COURT OF SOUTH AFRICA (GAUTENG DIVISION, PRETORIA) Case Number: 13034/2013 DATE: 1/6/2015 In the matter between: COMAIR LIMITED APPLICANT And THE MINISTER OF PUBLIC ENTERPRISES FIRST RESPONDENT THE MINISTER OF FINANCE SECOND RESPONDENT THE MINISTER OF TRANSPORT THIRD RESPONDENT GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA FOURTH RESPONDENT SOUTH African AIRWAYS SOC LTD FIFTH RESPONDENT THE STANDARD BANK OF SOUTH AFRICA LTD SIXTH RESPONDENT CITIBANK (INC IN THE USA) SEVENTH RESPONDENT NEDBANK LTD EIGHTH RESPONDENT DELETE WHICHEVER IS NOT APPLICABLE (1) REPORTABLE: YES/NO. (2) OF INTEREST TO OTHER JUDGES: YES/NO. (3) REVISED. DATE SIGNATURE 2 JUDGMENT Fabricius J, 1. Comair has operated in the airline industry in SOUTH AFRICA since 1946 and following the deregulation of the domestic airline industry, it entered the main domestic routes in 1992. In 1996 it became a franchise partner of British Airways and from that point its domestic routes were all flown under the British Airways livery and branding.

2 In 2001 it launched its first low cost airline branded as SOUTH African Airways is a State-owned company, which is governed by the SOUTH African Airways Act of 2007. The State, represented by the Minister of Public Enterprises is its only shareholder, and it is also a Schedule 2 public entity in terms of the Public Finance Management Act 1 of 1999 ( PFMA ). 3 The preamble to the former Act is contextually important inasmuch as it provides that the sole shareholder, the State, regards SOUTH African Airways as a national carrier and strategic asset that would enable the State to preserve its ability to contribute to key domestic intra-regional and international air linkages . 2. Background facts: On 26 September 2012 the Minister of Public Enterprises, with the concurrence of the Minister of Finance, (although there is a dispute about the concurrence aspect) provided a R 5 billion guarantee to SAA. Comair says that this is not the first time that Government has been called upon to assist SAA financially.

3 Since 2007 there have been at least three instances of that funding. Government had indicated that these interventions were based on exceptional circumstances, and were intended to allow SAA to operate on a commercially viable basis in a competitive market, 4 Comair alleges. In the introduction to the Founding Affidavit under the heading of SYNOPSIS Comair then makes the following background allegations: SAA has continued to operate on a non-commercial manner which is anti-competitive and prejudicial to the other participants in the domestic air transport services; Because of its undisciplined commercial behaviour SAA has repeatedly driven itself into serious financial difficulties resulting in it looking to Government for a bailout; There is every indication that given SAA s financial position, further funding from Government will be required; Given SAA s current financial woes it will be unable to repay any loans drawn down against the guarantee.

4 The obvious result would be that Government would be compelled (and ought reasonably to have foreseen this reality) to make good on the 5 guarantee. In fact, guarantee was a misnomer: the fact is that it amounts to a form of direct government funding by the Executive branch of Government to SAA, in a move that unconstitutionally bypasses the various safeguards inherent in the parliamentary appropriation procedure. Further, the decision was taken notwithstanding the fact that the Government had formulated a clear domestic air transport policy in various documents since 1990, in terms of which it committed itself to the following principles: There should be a deregulated and openly competitive domestic air transport environment; SAA should operate autonomously and on a commercial basis, it should not enjoy privileges as a result of being a government enterprise; Government would in future not guarantee loans to SAA or any other airline with government interests, private airlines have to borrow at their own risk.

5 Comair was provided with no opportunity to make representations to the Government prior to the taking of the guarantee decision, notwithstanding that the 6 decision constitutes a fundamental deviation from Government s own domestic air transport policy, and would have a prejudicial effect on Comair and the domestic air transport industry. 3. Accordingly, Comair alleges that given these facts, and the relevant policies that Government issued, it has been compelled to launch a review application to vindicate its rights and those of the public. Comair s cause of action: Given the abovementioned brief facts which Comair referred to as background material it alleged that the relevant decision to guarantee loans by SAA was: Unlawful and ultra vires the PFMA and in violation of the separation of powers principle, and relevant sections of the Constitution, because while the decision 7 purported to grant a guarantee, in fact the guarantee was a form of direct executive funding without the necessary legislative appropriation procedures being followed; In violation and ultra vires other provisions of the PFMA, read together with the SAA Act; In violation of the requirements for lawful, reasonable and procedurally fair administrative action (as guaranteed by S.)

6 33 of the Constitution and given effect to by the Promotion of the Administrative Justice Act 3 of 2000 ( PAJA )) and the rule of law, because the decision was; in violation of the requirements of just administrative action; in any event irrational; procedurally unfair and in breach of Comair s legitimate expectations; in violation of the constitutional rights under s. 22, S. 9 of the Bill of Rights, and was therefore in breach of the Government s obligations in terms of s. 7 8 (2) of the Constitution to protect, promote, and fulfil the rights in the Bill of Rights. 4. Relief sought: Viewing these rights cumulatively, Comair sought the following relief in the initial Notice of Motion: A declaration to the effect that the guarantee decision was unconstitutional and unlawful; The review and setting aside of the guarantee decision; The suspension of the setting aside of the guarantee decision for a period of six months, during which time, to the extent that the Government decides to grant any 9 financial assistance to SAA, it is to do so in the light of the findings of this COURT s judgment and.

7 An order that if the Ministers and/or the Government contemplate granting any financial assistance to SAA during the two-year period contemplated in the guarantee: a) such assistance must comply with Government s domestic air transport policy: b) they must file a proposal setting out the form that the financial assistance is intended to take, the procedure to be followed to providing that assistance and any conditions attaching thereto; and c) the COURT may, at Comair s instance, determine whether the proposal complies with the judgment and order of this COURT . In crafting this relief Comair has sought, so it alleges, to ensure that it is just and equitable, that a proper balance is struck between the need to vindicate the rights 10 that have been violated, and the need to ensure that the relief is fair to other affected parties, including the Government and SAA. 5. The mentioned guarantee to SAA for the sum of R billion was fixed for a period of two years until September 2014.

8 Certain conditions were attached to it. The hearing of the application was set down for February 2014. The First, Second and Fifth Respondents opposed the application, whilst the Third Respondent filed a Notice to Abide but also filed an Explanatory Affidavit. On 12 June 2013, realizing that it would not make 30 September 2014 as a going-concern, The SAA Board made an application to the Minister of Public Enterprises for the extension of the guarantee, pending the outcome of its application for re-capitalization. The application was accompanied by a memorandum setting out the background to the application, and the motivation and analysis of SAA s financial condition as a going-concern. On 19 July 2013 the Minister of Public Enterprises sent a letter to the 11 Minister of Finance requesting an extension of the R billion guarantee and indicated that it required the extension in order to continue as a going-concern immediately after the expiry of the R billion guarantee.

9 The Minister tabled two options in the letter pertaining to the form of the extension; the first being a two-year extension to 30 September 2016, and the second a one-year extension to 30 September 2015. The Minister supported the two-year extension to 30 September 2016. Prior to the Minister of Finance making a financial decision as to his concurrence, he met with the Minister of Public Enterprises to deliberate on this request. The Minister said that the engagements were intended to determine what the appropriate method would be to keep SAA as a going-concern while the long term turnabout strategy ( LTTS ) was finalised and implemented. The result of these engagements was consensus between the Ministers, and it was decided that it would be appropriate instead to grant SAA a perpetual guarantee so as to provide it the time needed for the finalization and implementation of the LTTS. Accordingly these engagements resulted in the concurrence by the Minister of Finance as contemplated in s.

10 70 of the PFMA. On 29 November 2013, the Minister of Finance 12 conveyed his concurrence with a perpetual guarantee ( the extended guarantee ). The Minister also imposed conditions to the extended guarantee which were the following: a) to submit monthly reports to the National Treasury and the Department of Public Enterprises on the implementation of the LTTS. These reports will be considered at the monthly meeting of the monitoring task team that has been established. b) The Minister of Finance and the MPE to jointly approve SAA s shareholders compact. c) The shareholders compacts to be translated into performance agreements for the Executive Management team and be the basis for determining remuneration. Punitive measures to be implemented in the event that SAA fails by a material margin to deliver on the profitability target set in the LTTS (with these terms to be agreed and defined in the shareholder compact).