The side issue the Gupta-Gordhan fight obscures

The escalation of the legal spat between Finance Minister Pravin Gordhan and the Gupta family raises two important issues on the governance of this country.

We have a constitution – rightly regarded as a model in many parts of the world – which gives even the most humble of our citizens the right to challenge any legislation deemed to be invalid on constitutional grounds.

But we would argue that the courts are becoming an overused arena and, in many ways, not the vehicle to challenge legislation.

This was spelt out by former deputy chief justice Dikgang Moseneke in a judgment handed down in the Constitutional Court during September 2012 on an appeal against an interim high court order that put on hold a plan to e-toll highways in Gauteng.

The interim order was overturned because the high court had not considered the separation of powers between the courts and the executive.

In simple terms, it is a type of Mexican standoff that neatly divides two of the country’s driving powers; parliament is there to frame legislation, the legal system there to enforce those laws.

What Gordhan and the Gupta family-owned financial vehicle Oakbay Investments look set to eventually fight out in the courts revolves round whether the South African banking system, obliged under law to report transactions deemed suspicious, was correct in closing Oakbay’s accounts or, as the Guptas allege, a concerted political attack on the controversial clan.

A side issue and one that has obscured the bigger issue of the ramifications of schisms within the ruling party, is the catchall slogan “white monopoly capital” and the ANC’s stated intention to exponentially broaden the base of black citizens with a significant stake in the economy. It might be argued that this ideological clash could pose a future constitutional challenge.

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