Finance Minister Pravin Gordhan used his state office to continue his warfare against the Gupta family, and had ulterior motives for launching his high court application.
This is according to advocate Rafik Bhana, acting for Gupta-owned company Sahara, during legal arguments before the Gauteng High Court, Pretoria, on Wednesday.
Gordhan is asking the court for a declaratory order that he is not obliged to interfere in the private banking relationship between Gupta-owned companies and the four South African banks that closed the Oakbay Investments and related bank accounts.
Bhana argued, as in the case of Oakbay, that the law was clear that the minister could not legally interfere. They questioned the real reason for Gordhan approaching the court to have this legal fact reaffirmed.
Bhana admitted that after the accounts were closed, Gordhan was on numerous occasions approached by Oakbay representatives to intervene. “But this was only for help to save jobs. It was not a demand on the minister to act because (Oakbay) is entitled to it. It was a cry for help within the legal parameters,” Bhana said.
Judge President Dunstan Mlambo questioned whether Gordhan was asked to intervene to ensure that the accounts were not closed. Bhana said Oakbay representative Nazeem Howa at the time asked Gordhan for any possible help. “It was a simple request. A cry from the heart.”
Judge Mlambo again wanted to know whether this was to tell the banks not to close the accounts.
Bhana replied that this was never a demand, simply a request. This prompted Judge Mlambo to remark: “You recognise that he (Gordhan) has no power (to interfere), yet still ask him for assistance?”
Bhana, however, insisted that Gordhan used this court application as a platform to place certain private information regarding the Oakbay accounts in the public domain. “He uses this application to bring into the public what is deemed Oakbay’s dirty laundry,” Bhana said.
He accused the minister of acting unlawfully and in the process abusing taxpayers’ money to pay for the legal fees.
Bhana said the minister should pay the legal costs from his own pocket, as this application was an abuse of the court process.
“This application was unnecessary. We conceded that he did not have the power to intervene with the bank’s decision. One should not use this court as a political battlefield,” Bhana said.
Advocate Jeremy Gauntlett, acting for Gordhan, said there was nothing before the court to prove that Gordhan acted with an ulterior motive. He also objected to the fact that Bhana raised issues of a conspiracy on the part of Gordhan, after the court earlier this week ruled that these accusations may not form part of the proceedings.
Gauntlett earlier argued that Gordhan turned to court to get affirmation on the legal position that he may not interfere in the banks’ decision to close Oakbay’s and related bank accounts as he was badgered by Oakbay representatives to intervene at the time the accounts were closed.
Gordhan, in his affidavit before court, said: “Oakbay demanded that on behalf of the government I intervened with the banks to achieve a reversal of their (the banks’) decision to close Oakbay accounts.”
Gauntlett argued that the minister was clearly pressured by the Gupta-controlled Oakbay companies to intervene.
Oakbay Investments advocate, Cedric Puckrin SC, said it never suggested Gordhan was obliged to intervene; it merely asked the minister for help as thousands of people were to lose their jobs as a result.
As the bank accounts had already been closed, this application was moot, he said. “The horse has bolted.”
The banks in general did not oppose Gordhan’s application.
Wim Trengove SC, acting for the SA Reserve Bank, said an order confirming the legal position would be good for economic stability in future.
This was especially so if there was a risk of possible political interference, Trengove said.
A declaratory order, as asked by Gordhan, would not only benefit the finance minister, but also any possible successor to him, he said.
Standard Bank, in its application, went a step further and asked the court to expand the order by declaring that not only the finance minister, but in fact the entire executive, including the president, should not be allowed to interfere with the banking affairs of others.
He was peppered with various questions from the judges in this regard and opposing arguments by some of the counsel, because President Jacob Zuma or members of the executive were not a party to this application. It was argued that the court could not issue an order which would have a bearing on someone without that person being able to state his or her side.