Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
13 March 2018

On Malusi Gigaba, the VVIP terminal, and lies told to the court

Last week Malusi Gigaba, the former Minister of Finance who was recently moved back to his position as Minister of Home Affairs, told a press conference in Parliament that Atul Gupta was not a South African citizen. This statement was false. It was not the first time that Minister Gigaba had made a false statement in a matter that related to the notorious Gupta family. To get a better understanding of the Minister’s adventurous relationship with the truth, it is necessary to study various court judgments relating to the rather strange issue of the establishment of a VVIP terminal at OR Tambo airport.

Wading through technical court judgments can be tedious. Constitutional Court judgments can be particularly cumbersome, as some judges tend to write an entire page when a sentence would have sufficed. But sometimes judgments – even those written in dry and factual prose – can mesmerise the reader because they reveal so much about the strange, truly screwed-up, nature of life in early twenty-first-century South Africa.

Take, for instance, the various judgments relating to the fight between Fireblade Aviation Proprietary Limited, on the one hand, and Malusi Gigaba, the Minister of Home Affairs, on the other.

While the judgments are all written in relatively dry and unemotional language, read collectively they hint at a much larger story about so much that is troubling about modern day South Africa: about inequality and privilege; about the arrogance of those with enormous wealth and those who wield political power; and – just at the edges of the stage – about attempts by a family who recently fled to Dubai to exert the same kind of influence over politicians than those who accumulated enormous wealth during the apartheid-era.

It all started when Fireblade Aviation, owned by the Oppenheimer family, decided there was a gap in the market for the establishment of a private airport terminal at OR Tambo international airport to cater for VVIP’s (which, I am told, stands for Very Very Important Persons – as opposed to ordinary VIP’s). The Oppenheimer’s had made rather obscene amounts of money during the apartheid era by exploiting the system of racial capitalism to their advantage, while also supporting the white “liberal” parliamentary opposition.

The first surprising thing I learnt when reading all the court judgments, is that private airport terminals for VVIP’s “is very common within the international aviation industry” and that it “is highly unusual in Europe for a private aircraft to use an airport facility other than” those operated privately for VVIP’s (or perhaps even just VIP’s). Moreover, there are over 5000 such terminals in the USA (a figure that tells its own story).

Really rich people, so it seems, believe that because they are wealthy they are more important than the rest of us, and therefore that they deserve to enjoy the extra “luxuries” and “comfort” associated with being able to depart and arrive at a VVIP airport terminal – far away from the ordinary passengers, the overwhelming majority of us (oh, the horror) flying economy class.

I was also surprised to find out that “Lanseria and Kruger Mpumalanga International Airports are both designated ports of entry and are both privately owned”. I also learnt that running such facilities can, for various reasons, be rather lucrative.

What did not surprise me was that the Oppenheimer’s and the Gupta’s ended up fighting about who should be permitted to run this private airport terminal for VVIP’s at OR Tambo (although the various judges carefully avoid any discussion of the alleged involvement of the Gupta’s in the case). This appears to be almost too good a metaphor for life in early twenty-first-century South Africa: old order cowboy capitalists and new order cowboy capitalist fighting it out for the privilege of running a VVIP terminal at South Africa’s largest and busiest airport.

In the usual legal way, the various judges avoid commenting on the larger implications of the case. The issue central to all three the judgments (the original judgment, the leave to appeal judgment, and the judgment confirming implementation of the order made in the original judgment), was a question of fact: did Minister Malusi Gigaba approve the Fireblade application before revoking his decision?

The Minister denied that he approved the application and that he had informed all parties at a meeting held in January 2016 that he had signed an approval for the Fireblade application. Fireblade claimed exactly the opposite.

Normally, in terms of the so-called Plascon-Evans rule, the court will accept the facts as alleged by the respondent (in this case, Malusi Gigaba) whenever there is a dispute of fact on the papers. However, as the Supreme Court of Appeal (SCA) noted in National Director of Public Prosecutions v Zuma this is not an absolute rule:

… a final order can be granted only if the facts averred in the applicant’s affidavit, which have been admitted by the respondent, together with the facts alleged by the respondent, justify such order. It may be different if the respondent’s version consists of bald or uncreditworthy denials, raises fictitious disputes of fact, is palpably implausible, far-fetched or so clearly untenable that the court is justified in rejecting them merely on the papers.

In other words, the court would have had to accept Minister Gigaba’s version of events unless it was absolutely clear that his version was false. In the original judgment, the court found that Minister Gigaba’s version was indeed demonstrably false. What remains a mystery, and what is not explained in any of the judgments, is why the Minister would lie to the court, given the fact that he must have known that there was ample evidence to show that the version he presented to court was false.

The minutes of the disputed meeting in January 2016 reflects that “MG [Malusi Gigaba] has signed this approval… MG indicated that his approval letter would be released with a formal response letter addressed to Fireblade.” The Minister denied that the minute was a true reflection of what happened at the meeting and stated: “The alleged minute, in any event, was never sent to the DHA for its comment. It looks like this was an internal note prepared for use by the applicant.”

The court found that this statement, made by the Minister under oath, was false. There was documentary proof that the minutes was sent to the Department of Home Affairs, and that the Chief of Staff of the department had received the minutes and noted its content. The court thus found: “This denial of the Minister [that he said what the minutes stated what he said] is uncreditworthy.”

But there was another reason why the Minister’s version could not have been true. On the same day that the meeting occurred, Mr Oppenheimer wrote to the Minister thanking him for seeing them and stated as follows: “I was delighted to be told that all outstanding matters had now been resolved and that you had signed the necessary letter to empower Fireblade to offer Customs and Immigration at its facility on a three-year trial basis”. After receiving this letter, neither the Minister nor any of his staff disputed anything said in it.

Of course, those of us who are not as wealthy as the Oppenheimer’s or the Gupta’s and who will never make use of a VVIP airport terminal in our lives, may well find another aspect of this saga troubling. Who of us have direct access to the Minister of Home Affairs? Who of us can easily arrange a meeting with him and can write to him after the meeting, secure in the knowledge that our letter will be read and filed? When you are a very wealthy businessman (and, I guess, therefore by definition a VVIP), your wealth will buy you the kind of access to politicians that most of us can only dream of ever having.

Be that as it may, there is a third reason why the Minister’s denial to the court must have been false. A few days after the meeting took place, the Minister wrote an internal memo (in his own handwriting), stating that: “Anglo must be made aware forthwith that the approval we granted then is also suspended until further notice, pending Denel’s investigations and their conclusions”

It is unclear why the Minister changed his mind, but it has been suggested that the Gupta’s got wind of the Fireblade scheme and decided that they wanted to run the private VVIP terminal at OR Tambo themselves.

After this reversal by the Minister (which he continued to deny to the court), Fireblade (whose owners until then had been embarrassingly obsequious towards the Minister) turned on him and approached a court for relief. It is from the judgment that followed that the extracts quoted above are taken.

But when Minister Gigaba appealed the order that he had to grant Fireblade the right to operate its VVIP terminal despite any pending appeal, another court was again asked to consider the question of whether the Minister had lied. It is this latter judgment that contains the most damning criticism of the Minister in the following terms:

Unfortunately, there is no escaping the conclusion that the rejection of the minister’s version must carry with it the conclusion that the Minister has deliberately told untruths under oath… The Minister is bound by section 96(2)9b) of the Constitution, not to act in any way that is inconsistent with his office. He is further bound by section 165(4) of the Constitution as an organ of state to assist and protect the court to ensure its effectiveness. By telling a deliberate untruth on facts central to the decision of the case, the Minister has committed a breach of the Constitution so serious that I would characterise it as a violation.

It goes without saying that these findings constitute an extremely serious indictment of Minister Gigaba. As things stand, it is a proven fact that Minister Gigaba deliberately attempted to mislead the court, that he is therefore dishonest, and – by implication – that one could not trust anything he says. If one is prepared to lie to the court in the face of overwhelming evidence refuting your lie, who would you not lie to?

The SCA may still grant permission to hear his appeal and it might still find against Fireblade on some or other technical ground unrelated to the dishonesty of the Minister. However, no matter what happens, it seems unlikely that another court will reverse the finding that the Minister had lied to the court. Meanwhile the Oppenheimer’s have gotten what they wanted. They are now running the VVIP terminal, which means that if Bono or some other unspeakable celebrity visits South Africa he or she will not – like the rest of us – have to go through the ACSA terminal at OR Tambo.

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