Dlodlo to appeal over Oppenheimers’ private international terminal

Source: Business Live, 11/12/2017

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.