Van der Merwe and Associates, lawyers for Oakbay Investments - the holding company for the Gupta family's businesses in South Africa - has submitted an affidavit to the High Court at Pretoria in response to an application by Pravin Gordhan, South Africa's Minister of Finance.
The Oakbay Group's businesses span ICT, mining, media and engineering, and today the company employs more than 7,500 people. Oakbay was founded by the Gupta family who originally hails from Saharanpur, India.
Oakbay Investments believes it has been used as a tool to attack South Africa's President Zuma for corruption by his critics due to the Gupta family's close personal relationship with the President. Oakbay is accused of benefiting from lucrative state contracts. However, Oakbay's audited financial results demonstrated that last year government contracts accounted for just 8.9 percent of Group revenue, the highest proportion it has ever been.
In the affidavit, Oakbay Investments accuses Pravin Gordhan, the Finance Minister, of orchestrating a campaign to marginalise the family and exclude their businesses from the South African economy. The highlights of the Oakbay Investments affidavit are as given below:
The Minister's superfluous application is riddled with factual and legal errors. The Minister's reliance on the list of 72 purported "suspicious transaction reports" is misplaced and the minister's application is supported by a flawed analysis and a faulty factual record.
Oakbay has never suggested that the minister is required to intervene in the bank-customer relationship. There is no contested legal issue here and there is never any reason for the minister to bring this application.
The minister could simply have declined to do anything in the exercise of his legal discretion. Instead, he has asked the court to confirm that he does not have to do anything. The minister has essentially asked the court to insert itself into the functioning of the executive branch. It would be bizarre if every empowered government official receiving a request for assistance or counsel, races to court to seek a declaration that he/she does not have to act on the request.
If the court were to countenance the minister's application for guidance, it would open the floodgates for other weak-kneed political officials who are too scared to take positions on sensitive political and policy matters and would make the judiciary a maker of political judgments. This application is an abuse of court and an effort to involve the independent judiciary to settle political scores.
Regarding the 72 "suspicious transaction reports" allegedly reported to the Financial Intelligence Centre (FIC) and highlighted in the certificate provided to the minister by the FIC:
Oakbay has made every attempt and pursued every avenue open to it, to gain the information it needs to prove that each and every transaction is legitimate and above board.
Nardello and Co, an international investigative firm, was engaged to review the 72 transactions. Nardello's report concludes that there is not enough information about the 72 suspicious transaction reports to identify them in the books and records of Oakbay Group or the personal bank accounts of members of the Gupta family.
Two-thirds of the allegedly suspicious transactions occurred after the time when the banks had already decided to terminate their relationship with Oakbay.
The FIC's release of this information to the Minister was unlawful in itself.
The court should therefore decline to grant the relief sought by the minister and dismiss the Minister's application with costs.
In January 2016, during a meeting with 60 "captains of industry", the minister, according to sources, elaborated on the Gupta family and said that steps must be taken "to clip the wings of this Family" as part of a coordinated campaign orchestrated by the minister.
Furthermore, the timing of the minister's application supports the Oakbay Group's suspicions that the application is politically motivated and is part of the Minister's ongoing plan to diminish the Oakbay Group and the Gupta family and to damage their hard-earned South African business.
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