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SAA v Media: How it unfolded

Dec 17 2015 16:27
Wim Pretorius, News24

Johannesburg – The media achieved a major victory on Thursday as South African Airways' urgent application for an interdict prohibiting three media houses – Media24, Moneyweb and Business Day – from publishing a leaked internal memorandum was set aside.

The main issue addressed in the memorandum is the deal SAA made with Airbus with regards to new aircraft which SAA is not able to pay for as agreed in the purchase agreement.

The memorandum states that the former Chief Financial Officer (CFO), Wolf Meyer, said that it would not be possible for SAA to complete their Airbus transaction and pay all of their creditors.

"The CFO has advised that SAA will be unable to pay its debts as and when they become due should SAA pay the PdPs (Pre-delivery Payment). SAA does not have money to pay both."

The memorandum also states that SAA is trading under insolvent circumstances.

"Based on a reliance on a going concern and the inability of the auditors to sign off on the annual financial statements, SAA has been and remains technically insolvent. Accordingly, SAA is financially distressed and trading under insolvent circumstances."

According to the Companies Act, the Board "is required to file for business rescue and liquidations" under their current financial circumstances.

This comes after SAA brought an urgent interdict in the early hours of 24 November to stop several media outlets from publishing the contents of a leaked memorandum, dated 6 November 2015, to the SAA board from former acting CEO Thuli Mpshe.

READ: The memo SAA wanted to keep secret

The memo was an internal memorandum prepared by the head of legal, risk and compliance at SAA, Ursula Fikelepi, to the board of the airline.

The interdict was, however, too late to stop Business Day from publishing the article in their print edition on 24 November. Media24, Moneyweb and Business Day were ordered to remove any references to the memorandum from the internet and social media pages.

In its legal papers, SAA said that if the High Court does not stop the publication of an internal memorandum urging the airline to apply for business rescue, the document could be used by Airbus against SAA in court.

It lodged legal papers replying to a bid by Business Day, to overturn an interim order banning the paper from republishing parts of the memo.

Judge Roland Sutherland gave a punitive cost order against SAA for "not being professional" in the management of the urgent application.

Eric van den Bergh, who represented various media houses, expressed relief at the judgment.

"This is what we had wanted, having been surprised in the middle of the night and I think it's the right decision although I haven't read the judgment," he told the media.

On Thursday Moneyweb editor, Ryk van Niekerk, told the media that SAA only brought the interdict three days after the media already wrote from the memorandum.

SAA gag order ruling

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