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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.
