Home Affairs Minister Malusi Gigaba's bid to overturn his own decision to let Fireblade Aviation Oppenheimer operate a private VIP terminal at OR Tambo International Airport was dismissed by the Supreme Court of Appeal in Bloemfontein on Wednesday.
"The minister cannot rely on his own unlawful attempt to circumvent the decision he had lawfully made to grant Fireblade's application," Wednesday's judgment handed down by Judge Malcolm Wallis read.
"The application for leave to appeal is dismissed with costs," concluded Wallis, with Acting Judge Hughes concurring.
The court battle was launched in November 2016 by Fireblade when the minister appeared to do an about-turn on granting Fireblade the permission for the VIP section.
The application sought to have the court declare that approval for the terminal – allegedly granted by Gigaba in early 2016 – could not be renounced.
Gigaba and the director-general of Home Affairs had asked the Supreme Court of Appeal for special leave to appeal a judgment in 2017 by Judge Sulet Potterill that the company, owned by the Oppenheimer family, be allowed to run a high-end private aircraft travel and customs and immigration service at the airport for business people.
The South African Revenue Service and the Department of Home Affairs would provide customs and immigration services akin to other privately-owned airports such as Lanseria, north of Johannesburg.
Gigaba had initially granted permission, according to the previous hearing, but then denied this. He said that it had only gone as far as all of the interested parties agreeing to the proposal.
Fireblade challenged this and won, so the minister, the department and Denel applied for leave to appeal the judgment. Potterill refused them leave to appeal, and also ordered that Fireblade's right to continue business stay in place, in case the department appeals in a higher court. Usually a court decision is put on hold pending the finalisation of an appeal.
However, Wednesday's judgment read: "Potterill J's grant of an order in favour of Fireblade was based upon two documents in which it was recorded clearly and contemporaneously that on 28 January 2016 the minister had granted the approval sought and signed a letter to that effect to be forwarded to Fireblade.
No prospects for success
"The accuracy of these documents, one of which was a letter addressed personally to the minister, was not challenged at the time. Instead, when the third respondent (Denel) raised an issue, the minister in his own handwriting noted that Fireblade be informed that 'the approval we granted them is also suspended'," Wallis continued.
"The underlining was his. His subsequent attempts to explain that he had not granted Fireblade the approval it sought, but merely indicated that 'the major stakeholders have indicated that the project can go ahead' were inconsistent with these documents and we cannot fault the judge's rejection of them, subsequently endorsed by the full court."
In the judgment on Wednesday, Wallis ruled that Gigaba and the director-general had no prospects of success in their application to appeal the Fireblade ruling.
Gigaba's spokesperson Mayihlome Tshwete said the minister and department were studying the judgment so will not comment on its contents immediately.
But Tshwete said the department is abiding by Potterill's order and the aviation services and immigration offices are operating at Fireblade's terminal.
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