The dawn of the 'inevitable demise' of the Guptas

21 September 2017 - 15:03 By Kyle Cowan
Ajay and Atul Gupta.
Ajay and Atul Gupta.

The Gupta family has just nine days to find a new bank willing to take them on as clients or – in their own words - face an “’inevitable demise”.

20 companies owned by or linked to the Gupta family brought an urgent application in July to halt the Bank of Baroda‚ the last remaining bank open to the Guptas‚ from closing all their accounts on September 30.

Pretoria High Court Judge Hans Fabricius on Thursday dismissed the Guptas’ application for interim relief – a motion which sought to delay the closures until the main application for an interdict could be heard on December 7.

Fabricius‚ in his 74-page judgment‚ delivered one of the most scathing indictments of the Gupta family and their companies in relation to numerous allegations of state capture to date.

“The bank can obviously not rely on the truth of such allegations‚ and neither does it have to‚”’ Fabricius said after listing a comprehensive summary of the allegations against the Gupta family and the Oakbay group of companies relating to state capture.

“I am obviously also not in a position to comment‚ save to say the following: when reading details of the various allegations in the answering affidavit‚ I could not help to wonder whether‚ unbeknown to me‚ democracy and the rule of law had somehow been suspended pro tanto (as far as it can go)?

“Could it be possible that the future‚ so bright in 1994‚ was now only history?

“Do the constitutional obligations imposed on the Prosecuting Authority as set out in Section 179 of the Constitution still exist?

“Do the various bodies of the Police Service referred to in Section 205 of the Constitution still remember their constitutional duty to combat and investigate crime?

“I cannot give an answer in these proceedings for obvious reasons‚ but the mere fact that the questions that arise‚ gravely concerns each and every one of us‚” Fabricius’ judgment read.

The Bank of Baroda included a summary of public allegations over state capture levelled at the Gupta family‚ using the numerous examples as proof of reputational harm a continued association with the family would hold.

Included in this summary was that between 16 September 2016 to 14 July 2017 the bank made no less than 45 suspicious transaction reports to the Financial Intelligence Centre on the Gupta family‚ including members of the Gupta family and other companies associated with them.

These transactions amount to over R4.25-billion.

“As I have set out in some detail‚ the bank is subject to a number of statutory provisions which in the main seek to uphold the integrity of the financial system in the country.

“It seeks to uphold such integrity with honest transparency. On the other hand‚ there is the well-founded suspicion‚ having regard to the uncontested events that I have referred to‚ that the applicants (Gupta family and businesses) subverted the integrity of the financial system‚ to put it gently‚” said Fabricius.

He found that there was no basis in law for the interim-interim interdict sought‚ and explained in detail why the application failed.

“Irrespective of whether negative publicly about the client is true‚ a bank is fully entitled to terminate the relationship with a client that has a bad reputation‚” his judgment read.

“SC Fine (counsel for Baroda) also pointed out that on the applicants’ own version there was little prospect that they would ever find alternative banking facilities inasmuch as they alleged in the founding affidavit that no other banks were prepared to do business with them. Therefore‚ on the applicants’ own version‚ whether they are afforded an additional three months’ notice or a further two years’ notice‚ the prospects of finding alternative banking facilities are not likely to improve.”