Why is Gigaba’s official October 2016 response to Fireblade Aviation not engaged?

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Clyde Ramalaine

– Gigaba’s shortcomings however defined cannot automatically translate to a natural right for the Oppenheimer family and its commercial interest to have such port at a key national security point –

The final script on Gigaba is threatened to be written by a group of embedded journalists led by none other than Ranjeni Munusamy for whom objectivity is a dreaded disease. In her Sunday Times opinion piece, she in many ways read Gigaba’s obituary detailed with a claim of Gigaba’s demise as self-inflicted.

Let me make my disclaimer up front, I hold no brief to speak for or defend the colourful adventurist and often indiscreet Gigaba. I alluded to someone earlier that solicited my opinion, we seldom pause to think how long Gigaba is a cabinet minister that being fourteen years which is a significant chunk in his forty-two years of life-span. On another score, we may ask what this means if anything, but that is a subject for another day. Notwithstanding Gigaba’s notorious appetite to attract attention for unrelated and really unnecessary drama, we warrant separating matters if we attempt being honest and sensible in our discourse.

This musing thus, is also not a defence of his wrongs be it at personal dubbed ‘home- affairs’ or political office of Department of Home Affairs level it juxtaposes questions in regard to the claims of the Fireblade Aviation application or request that he apparently approved verbally or a letter penned and signed by Gigaba himself dated 24 October 2016, which details the opposite of the claim.

Our public discourse is drenched in vibration otherwise understood as noise that the substantive is often deliberately sacrificed by the virulent if not petulant agenda of those who are hell-bent in scripting our thinking in a specific direction. In February, The North Gauteng High Court ruled that Finance Minister Malusi Gigaba lied under oath when he testified during his tenure as home affairs minister in a case filed by a company that wanted to open a private immigration terminal at the country’s biggest airport.

Judge Neil Tuchten in his ruling said, “The minister deliberately told untruths under oath, the minister has committed a breach of the Constitution so serious that I could characterise it as a violation.”

Fireblade Aviation, which is controlled by the Oppenheimer family, filed a lawsuit against Gigaba alleging that he had reneged on a pledge to delegate officials to staff their immigration and customs facility that was to be developed at the OR Tambo International Airport on land rented from arms manufacturer Denel.

Gigaba denied ever approving the terminal. The court ruled in Fireblade’s favour. Gigaba said he stood by his testimony and was consulting his lawyers about the ruling.

Gigaba’s counter-claim at the time was, “The decision of the court is being challenged,” he told journalists in Cape Town before delivering his Budget Speech. There is an appeal. At no stage was there an agreement with Fireblade. Legally you cannot have a private terminal for a family.”

This week at a Parliamentary hearing, second-generation billionaire Nicky Oppenheimer accused Malusi Gigaba with the following words“The first thing he said was he was delighted to tell us that he, indeed, granted his approval.”

Beyond the noise and lusty early obituaries of Gigaba as foretold by an active crowd who have their own agenda, lies the critical question – does Fireblade Aviation or anyone regardless of what the minister may have approved or not, have the right to occupy such a unique port at a key central point of national interest, the OR Tambo International Airport?

As with so many things in SA, this discussion is deliberately avoided, consciously not entertained because we are scripted as those who specialise in the art of deflection. With all the claims in an ocean of investigative journalists spanning veterans and new ones, there is hardly any attempt or desire to engage this salient question. We may only guess why there is no interest and a significant truculence on the part of seasoned journalists, constitutional law experts and civil society foundation custodians.

Public active Constitutional law experts like Pierre De Vos, Marinus Wiechers among others will tell you of the violation of the constitution at the drop of a hat but steer ominously clear of problematizing or engaging the thorny aspect of the constitutionality of the request of the Fireblade Aviation Private Company who with this request does more than encroaching on the liberties of the constitution and its balance between public and private dictates. CASAC’s Lawson Naidoo will jump up and down in claim of defending the constitution that hardly needs defence but be eerily silent on the how the constitution may intersect with the Fireblade Aviation request which has now become a demand because they have invested in such infrastructure.

The so-called progressive and very active Foundations of SA that red flags all ANC politicians except those they have vested economic and political interest in, are also not present to weigh in on the controversiality of the claimed right of Fireblade Aviation and the Oppenheimer family claims to have a private port. The often-vocal group of clergies known for their adamant claim of custodianship of a South African society is silent to ask how the constitution is served by this ‘application’. Why are there no questions asked of another family who with this application and request in a sense wants to capture the state?

Beyond the joystick claims of associating Malusi Gigaba with the 21st Century leprous family of SA politics, the Guptas, what was Gigaba’s official response to Fireblade Aviation is drowned out by those baying for his political head on a platter. Is there an official response? Can we engage that or should this documented official response be thrown out with the proverbial bathwater? Do Gigaba’s wrongs in this regard automatically translates to a free ride for Fireblade Aviation and the Oppenheimer family?

Click here to view Gigaba’s documented response

By the way Mr Caretaker President, Ramaphosa, your empty directive to tell us not to call benefactors of an unjust, unequal and avaricious concocted synapsis of colonialism and its second coming apartheid as white monopoly capital rings hollow. Firstly, you cannot unilaterally outlaw our history and present realities that define the dominance of apartheid’s privileged identity who like a historical record monopolised capital with its hallowed identity as the epicentre, you appreciate that you see them as heroes, it’s a natural response for you, simply because you want your public life understood but your political and economic life, has been living with them since 1978. Every time to herd your imported Ankole cattle, your appreciation for white monopoly capital’s interest in your wealth is registered. Secondly, before Mandela was convinced by many lunches on 11 February, the day of his self-delated release from prison, said “There must be an end to white monopoly on political power and a fundamental restructuring of our political and economic systems to ensure that the inequalities of apartheid are addressed”, We know he later would sell out by attending many lunches at the Oppenheimer estate of Brenthurst which later shifted to the development bank. It was here whereby capital for the first time swallowed the ANC and a political elite was created. We also know that the entire negotiations were orchestrated by the mineral-energy complex led by the powerful Oppenheimer family.

Hence, we implore you not to attempt to abuse borrowed presidential powers in strait-jacketing our right to call white monopoly capital what it is, we know you, directed by Johan Rupert, believe the construct was birthed by his previous public relations company. You will direct our discourse with empty threats and rewrite history in claims of the heroism of colonial and apartheid benefactors. The South African masses in ballot definition is yet to extend you the mandate until then, you are a caretaker president that should perhaps more listen than direct.

Nobody is asking why are the Oppenheimer’s, however, defined in a family and interwoven business interest entitled to such a port at a National Security Point? From where do they derive this inalienable birth-right to be entitled a port of this nature?

The fundamental question remains, what was Malusi Gigaba’s official response to the request of the Fireblade Aviation Company? We have a record in writing which we will attempt to engage to make sense of the current one tracked discussion that defines our current reality.

Gigaba stands accused of having, as a last resort to come out guns blazing fingering the agents and powers of white monopoly capital as sitting behind this campaign to annihilate his political career. Others demand that he be reminded of his own words on President Zuma when he in personal political career-interest ventured to have a public opinion as he sought to endear himself to Ramaphosa. While some may argue this is rather convenient for Gigaba to invoke victimhood, beyond claims and counterclaims as well as verbal agreements we are compelled to engage his official response which is a public record.

The documented response of Gigaba is a logical, systematic and structured thought-through response that makes the case against the issuing of such right in a contextual and succinct manner. Gigaba in his official communique is categorically clear when he on the funding aspect flags a communicated concern, asserts, “Former Minister of Finance addressed a letter to myself and has expressed concerns about the funding for the facility. He indicated that after due consideration, he is of the opinion that the costs involved in proving such services for a single facility cannot be warranted, especially as there are adequate clearance facilities at the main airports terminal building”. [SIC]

Not only was the subject of adequacy with the current capacity at the main terminal raised and referred to as justified means to not grant the Fireblade Aviation request, but from a security angle, Denel in its correspondence to the Fireblade Aviation office, mentioned its concerns that vacillate on the security dimension reality that holds plausible risk factors associated with it. Gigaba recites an earlier Denel response which in its seventh paragraph delineates the following, ‘an international terminal operated at the Denel precinct brings with it a host of security risks, one has to look no further than the media coverage of drug trafficking, people smuggling, illicit smuggling of material such as currency, precious metals, hazardous material and weaponry”. Gigaba highlights the fact Fireblade Aviation’s response to Denel which is littered in verbosity of adjectives yet fails to make a counter-argument on responding to the cardinal challenges of security risk Denel flagged.

As cardinal departure point Gigaba references the Immigration Act 13 of 2002 which regulates the powers of the Minister to designate ports, (as defined in section 9A) of entry in South Africa. Gigaba then details the interpretation of Section 9A in its facets as it relates to entrance and exit of South Africa. He highlighted. “Importantly, a place of entry or exit is a place where all persons must report before they enter or depart the Republic. There is no provision in the legislation for a designating of a port of entry for us only by an exclusive category of persons.”

Gigaba went on to articulate that rationality for applying his mind and extending a place a designation of a port, “entails a requirement that such power must be used for a lawful purpose.” Meaning such power may not be used for a purpose which is not contemplated by the legislation. By the same token, the powers conferred in the legislation may not be used in arbitrary or capricious fashion or in order to achieve an ulterior goal.

 The Minister of Home Affairs, Gigaba then proffers two impediments for a claim that his office naturally extends him a right that underscores any power to designate the proposed place of Fireblade Aviation’s intent as a port of entry under Section 9A of the Act.

As a first impediment, he raised the fact that the port as designated will not be for public usage meaning accessible for all people, but the Oppenheimer family, its commercial interests and people approved exclusively by those who propose its existence. This renders the request not as meeting the criteria spelt out in Section 9 A, that unequivocally and beyond ambiguity articulates, a place “where all persons must report before they enter, sojourn or remain within or depart from the Republic”. It is, therefore, crystal clear that the request does not meet the minimum requirements of the specified section given its exclusivity.

Gigaba went further to pontificate in a hypothesis that should he possess the authority to accede to the submitted request, it still had to be tested by the cardinal aspect of rationality. That rationality alludes to the already referred to Finance Minister letter that problematizes the subject of funding. Albeit that the case can be made that the principle of “customer pays” as advanced by the applicants, allocating the responsibility to pay for the facility to the applicant. He demonstrates it is doubtful if there is any legislative authority that would enable a private entity to pay the state in order for the state to discharge its statutory and public functions.

The second aspect that the Minister in this didactic assessment makes resonates on the subject of what constitutes procedural fairness. With this, Gigaba with due consideration of the necessity for a public participatory process, argues for a role of public consultation to aid such decision. He, therefore, raises the ramifications and possibilities of objections for such from the general public, other potential commercial firms who equally may want to provide similar or exact services even at perhaps more favourable terms and lesser rates than what Fireblade Aviation may offer. Meaning these possibilities would be made redundant by virtue of being denied the opportunity to participate since a decision for Fireblade Aviation unilaterally would disqualify their constitutional equal privileges since a public participatory process was not followed.

Let us then again hear Gigaba in verbatim, “But to enter into a private negotiation with a commercial firm in respect of decision as significant as the present seems to run counter to the norms of transparency and accountability that are contained in section 1 of the Constitution.”

Gigaba concludes with the following words, “For the reasons mentioned above, my view is as Minister, I would probably be acting unconstitutionally and in breach of section 9A of the immigration Act if were to accede to your request. In the light of the above, I regrettably wish to inform you that I do not accede to your request.”

Having had access to this official response as penned in October 2016, and cognizant of an absence of any other documented evidence that counters this official response or any other verbal claimed accession, we have nothing else to rely on as it constituting the official response of a sitting minister as far back as two years ago on the subject matter.

I ask again why is this official response not engaged, given traction or debunked by those who claim to have the evidence to the contrary? It then goes without saying that Gigaba purely on the basis of this, his official response must be concerned that another agenda is at play with various role players for their own reasons and interests sharing that agenda. It simply cannot be that Gigaba’s failures, however, conflated and magnified as automatically translating to an uncritical victory for a singular private family and their commercial interests to demand unconstitutional action by sitting ministers to serve their interests. The politics of deflection has reached unknown proportions in our discourse.

Clyde N. S. Ramalaine
Political Commentator & Writer Chairperson of TMoSA Foundation