CityPress - - Front Page - RAPULE TABANE rapule.tabane@city­

Home Af­fairs Min­is­ter Malusi Gi­gaba is go­ing back to the courts to fight the Op­pen­heimers in a le­gal mat­ter that threat­ens his Cabi­net po­si­tion.

Gi­gaba has so far come short in court bat­tles with Fire­blade Avi­a­tion, owned by the wealthy Op­pen­heimer fam­ily. The courts have agreed with Fire­blade that Gi­gaba granted it ap­proval for a pri­vate ter­mi­nal at OR Tambo In­ter­na­tional Air­port.

The ter­mi­nal was al­legedly granted by Gi­gaba in early 2016 dur­ing his first stint as min­is­ter of home af­fairs but he has de­nied giv­ing such per­mis­sion. Now Gi­gaba is ap­ply­ing to the Con­sti­tu­tional Court to ar­gue that such a deal would in any case be il­le­gal and un­con­sti­tu­tional.

Two weeks ago the Supreme Court of Ap­peal (SCA) dis­missed Gi­gaba’s ap­peal against a high court judg­ment which not only found that he had agreed to give Fire­blade per­mis­sion, but had also lied un­der oath. The SCA found “there is noth­ing to sug­gest that the is­sues raised by the min­is­ter are of such a na­ture as to war­rant the grant of leave to ap­peal not­with­stand­ing the lack of prospects of suc­cess”.

The high court judg­ment that Gi­gaba lied has placed his Cabi­net po­si­tion in peril. Pres­i­dent Cyril Ramaphosa said in Par­lia­ment he was con­cerned about the judg­ment and would give the mat­ter “his due and proper con­sid­er­a­tion”. This was a sig­nal that he would act against Gi­gaba, pos­si­bly by dis­miss­ing him. Gi­gaba re­turned to Home Af­fairs just over a month ago af­ter Ramaphosa ap­pointed new Fi­nance Min­is­ter Nh­lanhla Nene. Gi­gaba and Home Af­fairs have since ob­tained fresh le­gal opin­ion ad­vis­ing that they could make a solid case be­fore the Con­sti­tu­tional Court. Ear­lier this year the Con­sti­tu­tional Court re­fused to hear his mat­ter, say­ing it must first be ex­hausted by the SCA, which has now hap­pened.

Gi­gaba is con­vinced that should the judg­ment not be re­versed, this would en­cour­age other wealthy South Africans to feel en­ti­tled to their own air­port ter­mi­nals, lead­ing to an un­con­trol­lable flood. Ac­cord­ing to gov­ern­ment in­for­ma­tion, sev­eral mega-wealthy South African fam­i­lies have in­quired about the pos­si­bil­ity of hav­ing an im­mi­gra­tion and cus­tom clear­ance ter­mi­nal at ma­jor South African air­ports.

The case Gi­gaba hopes to ar­gue be­fore the Con­sti­tu­tional Court is whether a min­is­ter can ef­fec­tively con­tract with a pri­vate party to al­low for state re­sources to be placed at the dis­posal of a pri­vate party for its own com­mer­cial in­ter­ests.

In terms of the now dis­puted deal be­tween Gi­gaba and Fire­blade, the com­pany would cover the state ex­penses for run­ning the air­port ter­mi­nal. Gov­ern­ment lawyers will now ar­gue that it would be un­fair for a pri­vate com­pany to un­duly ben­e­fit from state re­sources sim­ply be­cause they are rich and that it would amount to a form of “state cap­ture”.

Gi­gaba would want the Con­sti­tu­tional Court to de­ter­mine whether the high court might have tres­passed into the realm of pol­icy-mak­ing, an ex­ec­u­tive func­tion, by per­mit­ting Fire­blade to com­mit the min­is­ter to a de­ci­sion which has no ba­sis in law.

He be­lieves any such deal would have no ba­sis in law be­cause there was no open ten­der af­ford­ing other par­ties an op­por­tu­nity to bid for the ser­vices.

This, he would aver, is a vi­o­la­tion of sec­tion 217 of the Con­sti­tu­tion, which pro­vides that when gov­ern­ment con­tracts for goods and ser­vices, it must do so in ac­cor­dance with a sys­tem which is fair, eq­ui­table, trans­par­ent, com­pet­i­tive and cost-ef­fec­tive. Sec­tion 217 is re­garded as a con­sti­tu­tional safe­guard against the im­proper use of state re­sources and, in the ab­sence of any ten­der­ing process, would have been ig­nored.

The lawyers are ex­pected to ar­gue that if the high court find­ings are not over­turned, it would give gov­ern­ment of­fi­cials in charge of pu­bic pro­cure­ment the abil­ity to dis­re­gard sec­tion 217 of the Con­sti­tu­tion and per­mit them to do “back­room” deals with pri­vate par­ties. This would be in­im­i­cal to good gov­er­nance and the rule of law.

City Press un­der­stands Gi­gaba is still un­de­cided on whether to ap­peal the judge’s com­ments that he lied, ap­par­ently on the ad­vice that if he wins the big­ger le­gal ar­gu­ment, it may serve to ame­lio­rate any other find­ings made by the high court.

Malusi Gi­gaba

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