Oppressed A C S A Minority 1 (Pty) Ltd and Another v Government of the Republic of South Africa and Others

The appellants were minority shareholders (together holding about 1.8%) in Airports Company of South Africa SOC Ltd (ACSA), a state‑owned company in which the Government held a majority shareholding. Dissatisfied with ACSA’s shift away from a promised IPO and dividend‑paying commercial strategy, the appellants brought an application under s 163 of the Companies Act 71 of 2008 seeking an order that ACSA buy back their shares at fair value. Shortly before the hearing, ACSA’s representatives and the appellants concluded a settlement agreement, which was made a consent order of the High Court directing ACSA to repurchase the shares at a value to be determined by a referee. The Government and Minister of Transport were not parties to the settlement and had not approved the transaction. Almost a year later, the Government applied for rescission of the consent order, contending that it was unlawful and concluded without proper authority, in breach of the Airports Company Act, ACSA’s MOI, the PFMA, and Companies Act requirements. The High Court rescinded the consent order. The appellants appealed to the Supreme Court of Appeal.

The appeal was dismissed with costs, including the costs of two counsel, and the rescission of the consent order was upheld.

The case confirms that consent orders are subject to the same rescission principles as other judgments, and that courts must look to the validity of authority underlying settlement agreements. It reinforces the duty of courts not to sanction or perpetuate unlawful or unauthorised agreements, particularly where public entities and public funds are involved.