This followed Oakbay companies asking him to intervene when major banks closed their accounts, citing reputational risk.
Judge Aubrey Ledwaba dismissed the application with the words: “It is not appropriate for a member of the national executive to draw the judiciary into the exercise of his executive functions as evidenced in this application.
“To grant the minister the declaratory relief would allow the judiciary to stray into the exercise of executive functions, where circumstances do not warrant this involvement.”
There was some fuss over who really won this case, but let’s leave that for last. Some are engaging in the frivolity of a debate on Gordhan bearing the costs in his personal capacity.
The obsession with victory is perhaps misguided and ill-timed as it masks a more pressing issue.
We are more interested in what this case revealed. It unearthed deep political weight-pulling with the former minister persisting despite possibly knowing he had no business going to court.
What was his motivation? On the surface, it can be said he was badgered by the Oakbay businesses. After all, the judge did not mince his words on their behaviour. Let us then try to understand Gordhan’s thinking in this context.
To make sense of what was revealed, we must appreciate the political environment when he solicited the declaratory order.
The political context suggests a contest for power within the executive.
Remember that Minister of Minerals Mosebenzi Zwane let slip information about a Cabinet meeting dealing with the subject, which was later denied.
On another level, Gordhan as the face of a government desperately seeking foreign investment, faced the conundrum of having to explain how to appeal for foreign investment when companies that invested had their bank accounts closed, informed by mere conjecture.
However, given his super-ministry, superior to others, he knew he needed to make it impossible for any other ministry to get involved in the Oakbay companies’ case.
His political aim would have been to shut the door to any future involvement by ministers he had ring-fenced as sympathetic to the Oakbay companies.
Central to his approach was a legal aspect that was something of a gamble.
He had to assume the judiciary, possibly influenced by the scripted narrative and discourse of Oakbay, would not want to attend to the case in a clinically legal sense and would present a ruling he could use to show the judiciary, not the Treasury, had decided - effectively absolving him of complicity.
Could Gordhan have been warned of a possible encroachment by the judiciary on the executive sphere?
It’s likely he had legal advice, yet opted for a particular route. He may have weighed his political clout in a challenge to a “politically wounded” sitting president.
Gordhan may have taken on the role of the country’s economic saviour. He has spoken out on attempts to loot the Treasury.
In typical political fashion we meet a Gordhan vacillating between victimhood and arrogance. One day he’ll cry for protection and the next will be buoyed by the sentiment of those who deceived him into thinking he has a mandate to lead South Africa as president.
The latter is not too far-fetched, given that some of the chattering classes saw him as an angel and the president as a demon, in a case of good against evil.
Overnight he became a convenient saint with the claim of defending the public purse from a villainous emperor who sought to capture the Treasury.
The failure of his first tenure as minister of finance conveniently paled into oblivion as the scripted enemy, a “nefarious president”, became the focal point for all opposition.
The public sentiment of those with the luxury of data and social media platforms dictated that Gordhan be president.
Gordhan may not have been exempt from the ego-trip.
So he gambled on taking the matter to court, hoping to find a sleepy judge to deliver a knock-out punch that serves his political agenda.
That agenda would outlive his volatile tenure, preventing ministers from engaging on the issue of bank behaviour as exemplified in the Oakbay versus South African banks case.
The judge unequivocally stated Gordhan’s behaviour was inappropriate and out of line with regular practice.
The judge’s reference to the judiciary being drawn into the matter implies the minister was either ill advised or consciously set the judiciary up to encroach on the executive.
This raises the question of why a long-serving, usually meticulous and calculating minister could not see where his actions would lead.
In a society where the three arms of state are constantly tested in the structure of what defines a democratic state, it’s critical to ensure respect for boundaries.
Gordhan had no doubt set his sights on the Oakbay companies in an effort to deal with the Guptas.
Until then, the minister had shown no sign of personalising dealings with any other group.
It was as if he singled out Oakbay as a prime target for rebuke and exposure.
How do we arrive at this deduction? Well, he sought to invoke the 72 questionable financial transactions which the judge struck down as executed by Oakbay.
We know the banks used these to make a case for reputational risk.
But there was no need to drag these into the case other than to point to a political motive condemning Oakbay.
It can then be deduced the minister may have been in touch with the banks and consciously or blindly chose sides, becoming part of the banks’ narrative devoid of critical analysis.
So we must conclude, whatever his personal reasons, Gordhan had a political motive, which in all likelihood led him to risk compromising the executive as he pitted one side against the other.
His political motive made him less circumspect in protecting the relationship between the arms of state, namely the executive and the judiciary.
It also clouded his sensibility in presenting a precarious temptation to the judiciary. Let us hope it was not out of disrespect, assuming a judge would abandon the legal boundaries and venture to take an emotionally sympathetic stance and rule in favour of his political motivation.
His political motive laid waste to his objectivity and neutrality in the Oakbay versus banks matter.
Ultimately, Gordhan lost this case. He lost his objectivity and he lost to his political motive by letting it get the better of him and directing him down a path that would conclude with Judge Ledwaba’s emphatic reprimand on inappropriately drawing the judiciary into the executive sphere.
Gordhan lost the battle of integrity also because he is no longer finance minister and may still face disciplinary measures for his behaviour in the run-up to the eighth vote of no confidence in the president.
He also lost the battle of hearts with costs for his personal account while no one resorted to political gerrymandering when the Treasury confirmed it would pick up the tab.
We can only guess how Gordhan may have reacted if he were in Gigaba’s place.
By paying this bill, the Treasury has sent out a strong message - that it will not become a playground for political contests.
The Treasury will never present a facade that defies the outcome of the ballot. It will not provide a space for huge egos to collide.
It will never be captured by a political motive based on a super-ministry and its minister/make-believe prime minister challenging a president endowed with true political power.
Picking up the tab redeems the Treasury from what it became under Gordhan.