Home Affairs Minister Malusi Gigaba has suffered another setback after the Constitutional Court dismissed his application for leave to appeal a high court ruling allowing the Oppenheimer family’s Fireblade Aviation to run an exclusive immigration service for international travellers using private aircraft from its facility at OR Tambo Airport.
The Constitutional Court dismissed the application with costs. A similar application is still pending in the Supreme Court of Appeal.
Home affairs lost a series of legal skirmishes in the High Court in Pretoria against Fireblade, ending in January, with former home affairs minister Ayanda Dlodlo and director-general Mkuseli Apleni undertaking to ensure that immigration services were rendered at Fireblade’s VVIP terminal.
This happened after Fireblade applied to have them jailed for contempt of court. Fireblade finally successfully processed its first international VVIPs late last month.
Judge Sulet Potterill ruled in October that the then home affairs minister Gigaba (who is now once again in charge of the department of home affairs after a stint as minister of finance) had granted permission for the department to run a customs and immigration service at Fireblade’s OR Tambo terminal and that Fireblade could implement the decision.
She rejected arguments that the facility was unconstitutional, as it should be available to the public at large and it required a competitive public tender process.
A full bench of the court in December last year confirmed Judge Potterill’s ruling that Gigaba had indeed granted permission to extend Fireblade’s exclusive services to international travellers and that Gigaba’s claim to the contrary amounted to a serious violation of the Constitution.
Judge Neil Tuchten said in the appeal judgment Gigaba had, by telling a “deliberate untruth” on facts central to the decision of the case, committed a breach of the Constitution that was so serious that it could be characterised as a violation and amounted to an exceptional circumstance.
He said it was important that the minister should not be allowed to perpetuate the injustice by continuing to frustrate Fireblade in that which he himself had granted pending an appeal which might possibly take up to two years to finalise.