Gordhan's Gupta court battle comes to a head

Johannesburg – Claims by Oakbay Investments that Finance Minister Pravin Gordhan targeted the Gupta family is part of a “conspiracy theory” that has no credible basis, according to court papers filed by Gordhan’s legal counsel.

The court papers underline the minister’s heads of argument which will be presented in the case to be heard on 28 and 29 March 2017. Gordhan is seeking declaratory relief from the courts to state that he cannot intervene with the banks regarding the closure of clients’ bank accounts.

Oakbay in turn filed a responding affidavit on 20 January in which it said that Gordhan told business leaders at a meeting at Nedbank’s offices last year, to “clip the wings” of the Guptas. Oakbay called for the courts to dismiss Gordhan’s application because there was no dispute about his role as finance minister.

READ: Gordhan told big business to ‘clip the Guptas’ wings’ – affidavit

The state attorneys' papers, filed on Friday, tackle three arguments presented by Oakbay.

One being on the grounds of a political conspiracy launched by Gordhan. “Oakbay’s final defence is fabrication… It alleges a political plot by the minister against the Guptas. Oakbay now advances a conspiracy theory which finds no footing,” read the court papers.

The papers indicate that there is no admissible evidence to support these claims, which are labelled as “scurrilous allegations”.  

“Oakbay’s opposition was unreasonable. By its own admission Oakbay opposed this application for extraneous purposes, to construct a conspiracy theory.”

READ: Gordhan drops Gupta nuclear bomb

Secondly, the state attorneys will look at Oakbay’s argument that declaratory relief is impermissible.

This issue is important as confirmed by independent regulators, and banks. “A crucial organ in the international economy is affected.” It is in the public interest that legal certainty is obtained as the minister’s powers are not unique to Oakbay, the papers said.

As the minister is an executive authority responsible for the financial sector, banking industry and the economy, declaratory relief will bind the minister.

Although Oakbay argues that the fact that there is no dispute between the parties, the existence of a dispute is not a requirement for declaratory relief.

ALSO READ: Gordhan says timing of court bid was not premeditated

The state attorneys will highlight that the declaratory relief sought is a discrete legal issue of public importance, would affect matters in the future and does indeed require adjudication by the high court.

Oakbay also argues there is an issue regarding the separation of powers.

“There is no separation of powers problem,” said the papers. It is the role of the court to declare law, which is what the minister is seeking. This is cited in constitutional court case law, which shows that a declaratory relief is necessary for the courts to declare the law and then allow the executive and legislature to determine how best the law should be observed.

The papers reiterate that the application seeks to find how “power or duty” exists and not how it is to be exercised.

“There is accordingly no coherence in the crass adjuration that the minister’s application may precipitate ‘weak-kneed political officials’ approaching the courts to decide for them how to exercise powers,” said the papers.

If Oakbay perceives “political officials” as “too scared” to grant or refuse Oakbay’s approaches, then it is all the more necessary for law to be declared in this case as it falls within public interests and interests of justice and the rule of law.