On Monday, the Western Cape High Court ordered that Public Enterprises Minister Pravin Gordhan and the Department of Public Enterprises (DPE) provide Toto Investment Holdings with all confidential documents pertaining to their decision to sell a 51% stake of South African Airways (SAA).

But the court turned down Toto's application to halt the sale of shares of SAA, punishing it with costs. 

Judge Nathan Erasmus ordered that Gordhan and the DPE provide a non-confidential record and a confidential one and that all parties in the litigation be bound by confidentiality agreements. 

Toto Investment Holdings, an unsuccessful bidder for some of the assets of SAA, has launched an application to have the sale to Takatso's parent company Harith set aside. This application is to be heard at the end of January 2023.

In terms of the uniform rules of court, Gordhan and DPE were compelled to provide the record of decision for the transaction. But only a part of the record was handed over to Toto, as Gordhan and his department argued that crucial parts of it could not be disclosed due to commercial sensitivity. They said that some records must remain confidential. 

Erasmus ordered that for purposes of the case management of the January hearing, these records must be disclosed within 20 days of Monday's order. They will remain confidential and only parties to the litigation may be present in court when they are aired. 

Monday's order followed an urgent application by Toto last Wednesday to force Gordhan to provide the record. The applicants also asked the court to interdict the sale of shares to Takatso.

Erasmus dismissed the application with costs on several grounds. Among the reasons was that Toto could have applied for an interdict last year when the sale was first announced, but opted not to. Toto had also failed to join Takatso as a party, citing instead its parent company Harith as a respondent. 

Despite the dismissal, Erasmus said that he had the "obligation and authority" to ensure that the process was appropriately managed, leading up to hearing of the main application in January. With the approval of the Judge President of the Western Cape High Court, Erasmus said he would case manage the matter, the first step of which was to regulate the furnishing of confidential documentation under a confidentiality regime.