Interesting Judgment: Mango Airlines & Others v Minister of Public Enterprises & Others

11 September 2023

Members,

Please find attached the judgment of Phooko, AJ handed down on 6 September 2023.

The matter concerned the failure by the Minister of Public Enterprises to make a decision regarding the section 54(2) application that was submitted to him relating to the sale of Mango Airlines in December 2022, and deals with the interplay between the provisions of the PFMA and the Companies Act in so far as they relate to business rescue proceedings involving public entities, the accounting authority, and an application for approval of disposal of public assets amongst others.

The Court declared inter alia that:

1. the Minister’s failure to take a decision in respect of the application submitted by the BRP and SAA in terms of section 54(2) of the PFMA is unlawful and constitutionally invalid;
2. the Minister's failure to determine the section 54(2) PFMA application is reviewed and set aside;
3. the Minister is directed within 30 days after the service of the Court order, to take a decision in respect of the section 54(2) application and communicate the outcome thereof to the BRP and SAA, including furnishing such reasons for the decision made, failing which the BRP and SAA may assume that the section 54(2) application has been approved by operation of section 54(3) of the PFMA.

Kindly sent to us by Kgosi Nkaiseng of Cliffe Dekker Hofmeyr Inc and Colin Strime of Fluxmans Attorneys Inc.

Take care
René Bekker
Chief Operating Officer

  Judgment: Mango Airlines Soc Ltd & Others v The Minister of Public Enterprises & Others. Case No: 010700/2023