South Africans might not be clear who in the ANC is winning the battle, but there is little doubt that it is the people of the country who are losing, writes Howard Feldman.
Morning clouds. Mild.
An application by Export Development Canada (EDC), the country's state-owned export-import bank, to ground a plane being used by the Gupta family is being heard in the South Gauteng High Court in Johannesburg.
Bhana says the applicants can't think away the fact that the matter is already in another court. Bhana says it would've been more convenient to go to another court.
Bhana says they deny there was any urgency to the case, pointing to the applicants refusal to tell them when they were instructed.
Bhana says the major banks had closed the Gupta bank accounts all on the basis of reputational harm. He says you didn't even have to wait for the Bank of Baroda to close their accounts.
Bhana reiterates Cook's point that the aircraft will be maintained if it remains in use.
Bhana says the applicants' counsel describing it "as a cascading sequence of events" was only "flowery language". He says they can't pinpoint where it started.
Bhana says nothing explains the sudden urgency seen on the 15th of February when the papers were filed.
Bhana says they will not re-argue everything that was argued on the matter of urgency. But would like to go through some issues.
Bhana hands over a document dealing with chronology. Listing newspaper articles about the allegations against the Gupta family.
Bhana says the "elephant in the room which the applicants don't address" is why they did not go to the English courts.
Cook says the case of urgency was "extremely weak".
"Applying the law, you should come to the conclusion that this matter is not urgent and should be struck off the roll," Cook says.
Cook says there was an attempt to purchase the aircraft, but it was denied by the applicants.
Judge Kathree-Setiloane asks if it was a real attempt and Cook says a better offer could've been made.
"That could certainly be an alternative remedy, but they rejected it out of hand. It is something they could've pursued," Cook says.
Cook says there would be no irreparable harm if the respondents continue using the aircraft. "If there is damages, it will be fixed," he says.
Cook says if they continue using the aircraft, they will ensure it is properly maintained. "We submit there is no irreparable harm that will be sustained," Cook says.
Cook says serious doubt has been cast on the applicants' basis for coming to court.
#GuptaPlane: Cook arguing for the Guptas wants the matter struck from the roll #sabcnews— Chriselda Lewis (@Chriseldalewis) March 9, 2018
#GuptaPlane: Cook arguing for the Guptas wants the matter struck from the roll #sabcnews
Cook says the applicants rushed to the courts to salvage a reputation and was a waste of time of the court, and thus he requested that it be struck off the roll of the court.
Cook says one of the other issues being raised is that they are a flight risk. He says it's nonsense, because you can't talk about flight risk if the plane is out of the country. "If the plane is not here, it is inadmissible."
Cook says the applicants would have been aware of the allegations against the Guptas, but they entered into a contract. He says the current allegations are the same.
"What are they aware of? What they are aware of, are allegations in the media. Nothing has come before a court," he says.
Cook says he cannot conceive how the fact that the Gupta compound was raided, made this an urgent matter.
Cook says the applicants rely upon the removal of the tracking device to argue for urgency in the matter.
Judge Kathree-Setiloane asks why the resistance to ground the aircraft? Cook says the last thing you want to do is ground an airplane and put it in a hangar. Says it will depreciate quicker.
Judge Kathree-Setiloane disputes Cook's assertion and makes comparisons between the aircraft and motor vehicles being left in storage and properly maintained.
Cook says if the aircraft is stationary, it will be depreciate. He says continued use means the aircraft is properly maintained.
#GuptaJet Adv Owen Cook: it seems one of the brothers is not in SA, so he doesn't need the aircraft.Judge Kathree-Setiloane jokes: Unless it's dropped him off wherever he is.— POWER987News (@POWER987News) March 9, 2018
#GuptaJet Adv Owen Cook: it seems one of the brothers is not in SA, so he doesn't need the aircraft.Judge Kathree-Setiloane jokes: Unless it's dropped him off wherever he is.
"What is their case of urgency?" Cook asks.
Cook says the English courts are going to take 14 to 20 months. Says that doesn't show urgency.
Cook: "We submit that it is curious that on the 15th of February of 2018 the applicants should apply urgently for relief relating to events in the prior months."
Cook now dealing with issues relating to Atul Gupta resigning as chairperson of Oakbay, the delisting from the JSE and the cancellation of contracts with auditors.
Cook says the urgency must be viewed in the context of the lease agreement case.
Cook reading from an article about EDC's controversial clients and the Guptas' relationship with it.
Reciting a laundry list of indiscretions by both the Gupta family, as well as EDC itself, with regard to their lending practices.
Cook said it was ironic that the EDC would refer to reputational damage. He reads from a newspaper article referring to the Gupta family and their controversy, as well as EDC's controversies of loaning money to scandal-ridden individuals around the world.
#GuptaPlane Cook says the Canadian Bank entered into the agreement with the #Guptas after the controversial landing at Waterkloof Airforce Base. (Insinuating the bank knew of the reputational risks) #sabcnews— Chriselda Lewis (@Chriseldalewis) March 9, 2018
#GuptaPlane Cook says the Canadian Bank entered into the agreement with the #Guptas after the controversial landing at Waterkloof Airforce Base. (Insinuating the bank knew of the reputational risks) #sabcnews
Owen Cook SC arguing for Gupta companies Oakbay Investments and Westdawn.
EDC entered into the agreement during April of 2015, and that was exactly two years after the controversial Waterkloof landing and the infamous Gupta wedding.
Cook says there's a great irony in the approach adopted by the applicants, particularly the EDC.
- COURT IS BACK IN SESSION -
Court adjourns for lunch. Proceedings will resume at 13:45.
Cockrell says his clients wants the court to make a decision to direct the plane to Lanseria or an airport in the UK - in the first instance, to the airport in the UK.
The Guptas will just have to bear the costs of returning the airplane to either airport, and thereafter lose all rights to the airplane.
#GuptaJet Adv Alfred Cockrell: says his client seeks the following relief: The Guptas return the jet, it will be grounded pending the UK court case, and will be not be sold.— POWER987News (@POWER987News) March 9, 2018
#GuptaJet Adv Alfred Cockrell: says his client seeks the following relief: The Guptas return the jet, it will be grounded pending the UK court case, and will be not be sold.
#GuptaPlane Cockerell: Of what inconvenience would it be to the Guptas to keep the plane in a hanger, to be serviced by my client, they will not be paying rent. So why would they be so against the grounding of the aircraft? #sabcnews— Chriselda Lewis (@Chriseldalewis) March 9, 2018
#GuptaPlane Cockerell: Of what inconvenience would it be to the Guptas to keep the plane in a hanger, to be serviced by my client, they will not be paying rent. So why would they be so against the grounding of the aircraft? #sabcnews
Cockrell: "If that's not the case, the Guptas could've said that in the affidavit. They don't."
The tracking device is there, Cockrell says. "The question we're asking is why have they switched off the tracking device and they don't answer that... The inference my client is making, is that they have switched off the tracking device for unlawful purposes," Cockrell says.
Cockrell on the aircraft being used by the Guptas: "The public tracker has been switched off."
Cockrell says the Guptas have said it's not unreasonable to switch off the tracking system. But they give no reason why they say that. From his client's perspective, it places them in a position to suffer damages.
Cockrell citing the NDPP allegations against the Guptas in the Free State Estina/Vrede dairy project, as legitimate grounds for his client's concerns. "It is more than hearsay," Cockrell argues.
Cockrell says three significant events occured. One is all four commercial banks closed the Guptas' bank accounts, Oakbay resources delisting from the JSE, and two auditors resigning.
He says those three events are cause for his clients to be concerned about the Guptas defaulting on their loan for the aircraft.
There is a pronounced lull in proceedings as Cockrell keeps referring to reams and reams of court papers, for Judge Kathree-Setiloane and the rest of the court to refer to, while he seeks to argue his case on behalf of his client, EDC.
#GuptaPlane Cockerell reveals Gupta-linked company Oakbay did not supply EDC (Canadian bank) with audited annual financial statements as per agreement #sabcnews— Chriselda Lewis (@Chriseldalewis) March 9, 2018
#GuptaPlane Cockerell reveals Gupta-linked company Oakbay did not supply EDC (Canadian bank) with audited annual financial statements as per agreement #sabcnews
Cockrell says his clients seek interim relief based on various provisions of the lease agreement. He says his clients are not asking for the aircraft to sell it, but rather to keep hold of the aircraft and store it in a safe place until a matter in the UK has been finalised.
Cockrell says from their perspective there is no legitimate debate about jurisdiction. But he's willing to respond to it later if the respondents argue it further.
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