Pretoria - Finance Minister Pravin Gordhan is in for a tough time on Tuesday when he asks the Gauteng High Court, Pretoria, for a declaratory order that he cannot interfere with the decision of the country’s four major banks not to do business with the Guptas and their companies.
Not only had President Jacob Zuma, meanwhile, joined the court proceedings as an interested party in the application between Oakbay Investments and Gordhan, but the Gupta’s company Sahara, in additional heads of argument, seeks a personal punitive costs order against Gordhan.
The minister was not at court at the start of the proceedings and it is not expected that he will attend. There is also no need for him to be there, as his case will be advanced by his legal team, headed by Advocate Jeremy Gauntlet senior counsel. Neither of the Gupta family are in court at this stage. There are about 28 advocates in total in court, of which several are on a watching brief.
The application is being heard by a full bench, including Judge President Dunstan Mlambo and Deputy Judge President Aubrey Ledwaba.
Sahara meanwhile in its papers accused the minister of embarking on a “frolic of his own” and of trying to score political points by pressing ahead with his application.
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Zuma, in his application to join the proceedings, argued that he would be directly affected in any declaratory order the court may grant.
He said Standard Bank, the 17th respondent in the application, asked that no member of the executive, including the president, should be allowed to intervene in the legal tussle between the banks and the Guptas.
Zuma said Standard Bank cannot ask for a declaratory order excluding him or any cabinet minister from intervening in the closure of the accounts as he was not cited as a party to the proceedings.
Sahara, cited as the 14th respondent, meanwhile in its additional heads of argument said Gordhan approached this court for declaratory relief in circumstances where there is no dispute between the parties.
Advocate Rafik Bhana SC, argued that not a single party contends that the minister has any power that permits him to intervene in a private banking relationship where a bank decides to close the accounts of any of their clients, for whatever reason, no matter its unlawfulness.
“Despite this, the minister persists in asking this court to exercise to exercise a discretion in his favour. The question is why.”
Bhana said, unless this court acknowledged the political context in which Gordhan’s application is brought and recognised that this application is part of his own political strategy to pre-empt action by the Cabinet – in particular, the president – this court will be in danger of hearing an application that has no business being ventilated before it.
Bhana said the refusal by Gordhan to withdraw his application betrayed his real intent.
According to him, the declaratory order, if granted, will assist Gordhan in his political fight with the president and the cabinet.
“This court must fiercely guard against this and should dismiss the minister’s application for attempting to drag it into a political fight….where the involvement would be inappropriate and set a dangerous precedent,” Bhana said in his heads of argument.
Sahara will ask that the court dismiss Gordhan’s application and that that the minister must personally fork out the legal costs, on a punitive scale.
Gordhan, in his application, that R6.8 billion in payments made by the Gupta’s companies have been reported to authorities as suspicious.
Several banks, including Standard Bank, Nedbank, Absa and First National Bank as well as companies last year cut ties with the Gupta brother’s Oakbay Investments.
The Guptas said they never asked Gordhan to intervene in their relationship with the banks and that the simply asked for his assistance.
In an earlier statement issued by the Gupta family lawyer, Van Der Merwe Associates, in response to Gordhan’s affidavit, the family said they welcomed the chance to clear their name in court.
They said the application is flawed as the 72 transactions flagged by the Financial Intelligence Centre (FIC), were approved and cleared by the respective banks which processed the transactions.