Fireblade beats Gigaba in court

Oppenheimers’ operation wanted customs and immigration service at the corporate fixed base aviation operation it built at OR Tambo. JUDGE ON MINISTER’S EXCUSES

It is hard to misplace the irony in a week that saw financial markets begin to take a sharp view on SA’s creditworthiness, following Finance Minister Malusi Gigaba’s maiden mini-budget, and in which a judge in the high court in Pretoria called his version of events “uncreditworthy”.

Judge Sulet Potterill on Friday delivered her judgment in the highly-publicised case between the Oppenheimers’ Fireblade Aviation and Gigaba in his capacity as the then minister of home affairs.

The judgment related to an application made by Fireblade to have an ad hoc international customs and immigration service available at the corporate fixed base aviation operation Fireblade built at OR Tambo airport.

Essentially, Fireblade invested in a seven-star facility which, up until the judgment had been delivered, was used by travelling VVIPs as a stop-over between domestic flights. Fireblade wanted to expand the use of the facility for guests arriving from international destinations and thus sought, over a period of five years and jumping through various regulatory and administrative hoops, government’s blessing to have officials from the Border Control Operational Coordinating Committee (BCOCC) man the facility for the processing of international flights.

Airports Company South Africa supported the initiative, as it would provide one of the first steps for it to be able to reorganise commercial business aviation at ORT and there’s a “dire need for these premium products at the largest airport in Africa and the lack of these facilities is definitely tarnishing our brand”. The facility is built on land owned by ACSA and managed by Denel properties.

Approvals from various government departments and agencies were eventually given and this culminated in a meeting on January 28, 2016 between the Department of Home Affairs, represented by Gigaba, and Fireblade Aviation, represented by chairperson Nicky Oppenheimer. The minutes reflect Gigaba communicating that he’d approved the facility for international arrivals and departures and that the approval letter would be released with a formal letter addressed to Fireblade.

The court was asked to rule on whether the reasons given by the minister to first suspend, then rescind, his original decision were justified in the eyes of the law. Judge Potterill methodically struck out all of the excuses and reasons proffered by Gigaba for his about-turn, variously calling his arguments and representations “spurious”, “fundamentally flawed”, “laboured”, “meritless”, “bad in law”, “nonsensical and palpably untrue”, and “uncreditworthy.” So, pretty damning? Yes. Judge Potterill also detested the manner in which representations made by Advocates Tulk and Tembeka Ngcukaitobi had reverted to name-calling and insults. “I am urged not to allow a court of law to serve, in the words of the Constitutional Court, as a ‘free for all insult trading contest …’”

Judge Potterill found in favour of Fireblade Aviation. “The ministerial approval issued in terms of prayer 1 above is of force and effect, and may not be renounced or revoked by the first respondent [the minister of home affairs] without due cause and may be implemented and relied on by the applicant.”

The judge ordered the respondents to pay Fireblade’s legal costs.