Dlodlo to appeal over Oppenheimers’ private international terminal
Home Affairs Minister Ayanda Dlodlo will approach the Supreme Court of Appeal to challenge the Oppenheimer family’s court victory in October to run a private international terminal at OR Tambo International Airport.
On Friday the department lost the second round in a battle that has pitched the Oppenheimers against the Guptas when the High Court in Pretoria dismissed its application for leave to appeal against the October judgment.
The conduct of Dlodlo’s predecessor, finance minister Malusi Gigaba, has also come under the spotlight.
Judge Sulet Potterill found there were no prospects of success on appeal but Dlodlo disagreed, adding to delays that have already cost the project R373m.
"We have noted the judgment and still believe that a higher court could come to a different conclusion," her spokesman Mava Scott told Business Day on Sunday. "We intend petitioning the Supreme Court of Appeal according to the uniform rules of court."
Oppenheimer aviation company Fireblade wants home affairs to allow it to offer immigration and customs facilities at its luxury private terminal so passengers using private jets do not need to be processed at OR Tambo’s main terminals.
The court had previously accepted Fireblade’s argument that it was common practice throughout the world for private jets to use private terminal facilities called fixed-base operators (FBOs).
Potterill said several state entities had already approved the project. The decision by home affairs to withhold approval had resulted in accumulated losses of R373m because Fireblade’s business model is premised on being able to service international flights.
She cited a missed opportunity when luxury car maker Porsche chose to host a global event at Fireblade in November.
"The event generated over 1,400 international passengers which could have been processed through the FBO," Potterill said. "All the private aircraft that came in for the event could not use the FBO because it was unable to offer the [customs and immigration] services."
In court papers Fireblade accused Gigaba of reversing his approval in 2016 following pressure from the Guptas. He was home affairs minister at the time.
Fireblade argued Gigaba had approved its application at a meeting in January 2016 and should not be allowed to change his mind without good cause.
In her ruling in October Judge Potterill agreed, saying Gigaba’s approval "is of force and effect and may not be renounced or revoked without due cause and may be implemented and relied on by the applicant".
The ruling was suspended pending the outcome of the appeal process.
The court heard that Gigaba reversed his approval just five days after granting it when he received a letter from Denel chairman Dan Mantsha saying it could not go ahead for security reasons. Denel, which leased the premises to Fireblade, had previously warmly endorsed the project.
Fireblade argued Denel’s "security concerns" were a ruse to disguise the Gupta family’s bid to muscle in on the airport, and that when this failed they had induced Mantsha to block approval.
Denel and Gigaba have denied the Guptas played any role in their decisions.
In its appeal application home affairs argued the court should have accepted Gigaba’s version that he hadn’t granted Fireblade final approval.
But in her judgment on Friday Potterill lashed out at Gigaba, calling his arguments "disingenuous, spurious and fundamentally flawed, laboured and meritless, bad in law, astonishing, palpably untrue, untenable and not sustained by objective evidence, uncreditworthy and nonsensical".
"A court does not readily make findings that a minister’s version is untenable and palpably untrue," Potterill said. "In this matter it had to be done. There are no prospects of success that another court will come to another conclusion."
Home affairs said the court also failed to consider the argument that it was beyond the minister’s powers to designate a port of entry for exclusive private use by the family and unconstitutional to do so without a public tender.
But Potterill dismissed these arguments as meritless because the Oppenheimer terminal was located inside an airport that had already been declared an entry port.
Providing a private facility with ad-hoc customs and immigration facilities was "nothing new", she added, citing Kruger and Lanseria airports as examples.
No public tender was needed because Fireblade was not rendering any goods or services to the state and there was no evidence of "favouritism" or "behind closed doors negotiations".
"I cannot imagine a more transparent negotiation than the four years herein," she said, citing "multidisciplinary meeting upon meeting, fulfilling requirements from various ministers and their departments and from many stakeholders".
Fireblade leased the premises from Denel "with the specific purpose to run the FBO" and could not be expected to undergo a tender process afterwards, she said.
Potterill also rejected a submission by Denel to strike out sections of Fireblade’s application that accused the state arms firm of doing the bidding of the Gupta family by reversing its approval, saying she had not relied "on such evidence" to reach her conclusion.
The Gupta family have not publicly commented on the case.
Earlier in 2017 the so-called Gupta leaks exposed how Mantsha had played a key role as the Gupta family’s fixer in a R100bn arms deal they wanted to clinch with India while they wined and dined him in Dubai, Mumbai and New Delhi. He has not commented on the allegations.