Parliament’s legal adviser has found there was nothing untoward in the deal between the department of public enterprises and Takatso consortium, which is acquiring SAA.
Legal adviser Andile Tetyana categorically denied there was any corruption in the deal, though he acknowledged certain lapses in governance.
Tetyana provided a legal opinion on the contract to parliament’s public enterprise committee on Wednesday after being given confidential documentation relating to the selection of Takatso as the strategic equity partner of SAA.
The documentation was handed over by public enterprises minister Pravin Gordhan last week, under strict non-disclosure terms.
The committee is investigating allegations made to parliament by Kgathatso Tlhakudi, a former director-general of public enterprises, who was dismissed.
Tlhakudi alleged that the sale of 51% of SAA to Takatso for a nominal amount of R51, with the consortium obliged to invest R3bn in the airline, undervalued SAA. He alleged the deal was orchestrated in an irregular manner by Gordhan to benefit a few privileged individuals.
However, Tetyana found that Tlhakudi headed the departmental evaluation committee that selected Takatso.
The only anomaly identified by Tetyana was the choice by the department of RMB as the transaction adviser in July 2020 without the contract being put out to tender and without exploring other potential options in the market. This was done because the department did not have capacity.
RMB pulled out as transaction adviser, and an evaluation committee consisting of departmental officials took over the search for a partner for SAA.
Tetyana said no effort was made to appoint another transaction adviser and this was a disjuncture the department would have to explain. But the department’s legal and governance deputy director-general, Melanchton Makobe, said at the media briefing held by Gordhan after the committee meeting that this was because the department had capacity.
The consortium consisting of Harith General Partners and Global Aviation was eventually selected as the preferred strategic equity partner by the evaluation committee.
Gordhan wrote a letter to committee chair Khaya Magaxa, which was distributed at the media briefing. In the letter he cautioned that, based on advice from senior counsel, if the committee released the confidential documents which he deemed commercially sensitive, then “the committee will be liable for any possible liability and not the department”.
If the committee decided that the documents should be released without agreeing to a confidentiality regime and if the meeting considering the documents was made public, there was a risk of legal action being taken against the department and parliament, Gordhan said.
Confidential
The minister itemised which documents were not confidential but said those that were confidential included the RMB shortlist of interested parties, the Harith expression of interest and the sale of shares agreement with Takatso.
However, Takatso indicated in a letter, also distributed by Gordhan, that the sale agreement could be shared under a confidentiality regime, which meant that the documents and their contents could only be discussed in a closed meeting and could not be photographed or recorded in any form.
The committee has been trying for months to secure the documentation from Gordhan to test Tlhakudi’s allegations.
Last week Gordhan and the committee clashed over his demand for an in-camera meeting as a condition for providing the committee with the requested documents, specifically the sale and purchase agreement and the shortlist of candidates.
He also wanted MPs to sign a nondisclosure agreement.
The media and the public were told to leave the meeting while the discussion took place.
Tetyana cautioned MPs that the deal with Takatso was still live and disclosing the sale and purchase agreement could compromise the competitiveness of SAA. He added, however, that the committee would need to have sight of the documents on a confidential basis to compile its report.
Magaxa said the committee would meet again next week and reach a decision on the investigation. Part of the meeting might be held in camera.
Gordhan said negotiations were under way with Takatso to revalue SAA on the basis of it having taken to the skies. He emphasised that at all times his department had been as transparent and accountable as it could be considering that the transaction with Takatso was still live. Until it was fully completed the committee must be held in camera.
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