CIEX recommendations ‘unlawful’
FINANCE Minister Pravin Gordhan said that blindly implementing the recommendations of the CIEX report that Absa be strong-armed into repaying the billions used to bail out Bankorp, would be illegal and amount to a contravention of the constitution.
This was contained in court papers he filed as a respondent in Black First Land First’s (BLF) application that he be compelled to follow CIEX’s recommendations and recover billions looted from the state in the dying days of apartheid. The specific case involves R1.5-billion that was illegally given by the Reserve Bank to Bankorp, which later became Absa.
CIEX, a British firm made up of former MI5 and MI6 operatives, had approached the government in the late-’90s saying it could recover the money for a fee.
In its October 26 application the BLF, led by former EFF MP Andile Mngxitama, also asked that the courts declare Gordhan conflicted and captured by white capital because he had shares in the banks, and also order that he release information on the R68-billion declared by companies as having been illegally taken out of South Africa.
In his papers, Gordhan said CIEX’s recommendations, which involved the Reserve Bank threatening or coercing Absa into paying the money back without it going to court, had not been implemented because they were unlawful.
Government’s reaction to the report is also subject of an investigation by the public protector.
“That the CIEX report has not been considered appropriate for implementation by any of the relevant authorities since the dawn of democracy, by either the Heath Commission or the Davis panel, is significant.
“There have therefore been consistent decisions not to implement [or recommend the implementation of] the report. None of these decisions has been reviewed.
“Instead, I am now – 19 years after the report was issued – sought to be compelled to implement it. This is after I am further advised, [it would be] legally incompetent,” he said.
He asked that the application, which he described as “entirely unprecedented in its political intrigue”, be dismissed with costs.
“It seeks relief resting on a 20year-old unsolicited document prepared by retired MI6 spies.”
“The application violates the doctrine of separation of powers, because it seeks to impose on the minister of finance a duty to comply with recommendations advanced in a report in circumstances where government has itself since 1997 ejected CIEX and rejected its report, at least implicitly,” he said.
He also labelled the application an abuse of process for seeking to pursue political campaigns through litigation.
Despite the issues with the CIEX report, he said, government had sought to act on it and appointed a panel of experts led by Judge Denis Davis to investigate the legality and potential remedy of the assistance granted to Bankorp.
The panel’s report found that although the bank acted beyond its powers, restitution was impractical.
The minister also dismissed allegations contained in the papers that he was acting in the interest of white companies.
Gordhan accused the BLF of using its application to settle scores arising from his own case involving the Gupta family’s Oakbay Group of Companies.