Oppenheimers Attempts To Capture Malusi Gigaba Fail Dismally
I had noted a newspaper article published in the Sunday Times of 4 December 2016 in which the Oppenheimer family had made certain allegations against myself which are intended to cast a negative aspersion on my integrity, both on professional and personal levels.
At the time of publication, I held back from responding due to the legal matters that were unfolding. I deemed it best not to engage in a mudslinging exercise with the family on a matter that is a subject of litigation, on which the courts should be afforded the opportunity as well as the decorum to decide.
It would be prudent though to address a few of the allegations made against myself in order to contextualise such allegations for the benefit of the public. Any other allegations that I have not addressed in this statement should therefore not be construed as an admission on my part.
In the article, the family alleges that on 28 January 2016, I approved the family’s application for its own exclusive port of entry, to be situated at OR Tambo International Airport. I wish to state categorically that at no stage have I ever approved such application as alleged by the family.
What actually transpired was that indeed a meeting between myself, some of my department’s senior management and Mr Nicky Oppenheimer, accompanied by, among others, Mr Robbie Irons, was held on 28 January 2016, at their precinct at OR Tambo International Airport. The purpose of that meeting was essentially to afford the family the opportunity to present its proposal to me and for myself to consider it after having consulted with all affected stakeholders.
For the record, I have never shied away from engaging with various stakeholders, on any particular matter, and I have met with numerous business people, civil society representatives and ordinary South Africans. It is the responsibility of public servants within measure to be accessible to a variety of stakeholders. This accessibility is a means through which one can execute the tasks of his office.
I have noted from the newspaper article as well as the court application that the family produced a document (single page, not signed by anyone) which purports to be minutes of the meeting in which I allegedly approved their proposal. Of significance is the fact that these so-called minutes were not adopted as is normal or standard process in formal meetings which process would have accorded authenticity to such minutes. I therefore, have the right to dispute the contents of such a document.
Another allegation that I have noted in the said newspaper article as well as in the court application is that I have rejected their application ostensibly because I have been influenced by Denel. I wish to state that though I have taken into account Denel’s concerns with regard to security compliance, this is not the only factor I have taken into account in arriving at my decision. In my letter addressed to Fireblade dated 27 October 2016, I have explained elaborately the basis of my rejection of their application, and that includes the following:
I have referred to the provisions of Section 9(1) and 9(3) of the Immigration Act No. 13 of 2002 which regulates the powers of the Minister to designate ports of entry in South Africa.
This section of the Immigration Act stipulates that the Minister may in a prescribed manner designate any place in the Republic which complies with the prescribed requirements where ALL persons shall have to report before they may enter, sojourn or remain within or depart from the Republic.
Section 9A(2) of the Act grants me the power on good cause shown to withdraw a designation of a place as a port of entry. As such, entrance into and exit out of the Republic is strictly regulated by the legislation, and I am thus duty bound by the legislation. There is thus no provision in the legislation for a designation of a port of entry for use only by an exclusive category of persons. In this regard, I may exercise a power that is expressly or implicitly conferred by the legislation.
When exercising a power that is conferred by legislation, I may only do so in a rational manner and on rational grounds.
In my view, the only exceptions that would be justified in terms of Section 9A(1) would be those that relate to persons performing public functions, such as members of the security services including the police and the defence force.
It would be permissible in those instances to designate specific ports of entry for those persons for reasons related to the nature of their functions. But opening a port of entry for private use as requested by the family is another proposition altogether. It must comply first and foremost with Section 9A(1) which specifically stipulates that a port of entry is a place where all persons must report.
Since what the family requests is not a place where all persons will be have access, it probably falls outside the provisions of Section 9A(1) of the Immigration Act No. 13 of 2002. As such, I would be acting ultra vires if I acquiesced to the designation required.
I am of the considered view that this application is exclusionary and I would have considered the same whether it had come from the Oppenheimers, the Guptas or any other family.
If this were to be done, what would have prevented others from wanting to see public services made exclusionary or private?
Assuming that I have the necessary authority to grant the request, such a decision would probably fail the rationality test in any event.
Furthermore, my view is that it is an improper use of public power to seek to privilege a private concern without an adequate benefit at large.
The family’s facility in itself is based at OR Tambo International Airport which airport has been designated as a port of entry and therefore, the family’s request would not satisfy the test of rationality.
In the newspaper article, it is stated that I have raised as a concern that there may be other commercial firms who may want to provide the exact same service perhaps at rates that are more favourable to the state, however, the same newspaper article fails to indicate the reasons behind this concern that I have raised.
The reason I have raised the issue of potentially interested commercial firms is that they would be prevented from making their offers known to the state because of absence of a public participatory procedure. It is such that it is not known what might transpire in any public consultation process. That is precisely the point of a public process. This concern will be in line with the norms of transparency and accountability that are contained in Section 1 of the Constitution of the Republic of South Africa.
If I were to accede to the family’s request, I would probably be acting unconstitutionally and in breach of the Immigration Act No. 13 of 2002. Extensive reasons and further response to the family’s accusations will be outlined elaborately in my answering affidavits to both the court application launched by the family to review my decision.
While I understand that public servants are subject to criticism sometimes deserved and at other times undeserved, sometimes constructive and at other times defamatory, I would caution against reckless, unsubstantiated accusations of corruption because they begin to erode the public trust for institutions. I am of the view that the decision taken by the Department of Home Affairs is on the side of the public and should garner trust from the public that our decisions are taken rationally, for the common good, and in their favour.
I thank you.