Oakbay‚ the president and the cabinet: Judge seeks clarity on order sought by Standard Bank

The High Court in Pretoria had a difficult time understanding the order sought by Standard Bank in the dispute between Gupta-controlled companies and Finance Minister Pravin Gordhan.

The bank was joined in an application by Gordhan where he seeks an order declaring that he cannot‚ by law‚ intervene in the banking relationship between Oakbay companies and banks which closed their accounts.

Gordhan made this application after entreaties from Oakbay for the minister to intervene on their behalf in the dispute with the banks.

However‚ Standard Bank sought a wider order before court.

It wanted the court to declare that no member of the national executive‚ including the president and all members of the cabinet‚ is empowered to intervene in any manner whatsoever in any decision taken by the bank to terminate its banking relationships with Oakbay companies.

However‚ Gauteng Judge President Dunstan Mlambo Mlambo said South African law was clear.

Mlambo said if the bank wanted an order against the president and other cabinet members‚ it should have joined them in the court proceedings.

“Let us deal with that. The order you seek goes beyond the current minister. What is the legal basis for that as those people are not here‚” Mlambo asked.

Standard Bank counsel Vincent Maleka SC said the relief the bank sought was directed at the conduct of Oakbay companies.

Maleka said the companies had articulated their frustrations in a way which led the executive to feel it was appropriate for it to intervene in the dispute.

However‚ Mlambo was concerned about issuing an order against members of the executive when they were not joined in the proceedings.

“Your order will not impede the powers and functions of the executive. They will still be able to function. The utility of your order is to say: In the context of this dispute‚ the executive has no power to intervene‚” Maleka said.

Maleka said there was a clear dispute between Oakbay and the banks concerning the closing of Oakbay accounts and that was a dispute that needed the attention of the court.

“The preferred means for the resolution of the dispute (by Oakbay) is unlawful. We will indicate why that method is unlawful. It will require the executive to intervene in a private law relationship when it is clear that the executive has no power to do so‚” Maleka said.

He said Oakbay had avoided the resolution of the dispute through regulatory intervention and had launched a public campaign against the banks.

Maleka said a number of ministers had called on Standard Bank to account for its conduct.

He said it would not be practical for the bank to interdict individual ministers whenever they intervened in the bank’s relationship with Oakbay.

“The more viable means is a declaratory order. It resolves the issue finally against everyone in government‚” Maleka said.

Maleka said the order sought by Gordhan‚ as it stood‚ was not good enough.

The matter continues.