Gupta companies failed to disclose facts in bank bid, high court finds

The various allegations of state capture and other breaches by the Gupta family makes up eight pages of the judgment. (AFP)

The various allegations of state capture and other breaches by the Gupta family makes up eight pages of the judgment. (AFP)

Between them, 20 companies associated with the Gupta family failed to disclose that they not only could continue to pay their staff if their last bank accounts are closed, but already had made arrangements to do so, high court Judge Hans-Joachim Fabricius said on Thursday.

Fabricius dismissed the companies’ attempt to order that the Bank of Baroda must keep their accounts open, saying they had made out no case while “balance of convenience weighs heavily in favour of a party which seeks to uphold and preserve the integrity of the established financial system and the rule of law”.

“Integrity” was not a word he would associate with the Gupta companies, Fabricius’s 74-page judgment made clear. In a hearing last week he was told the Gupta companies had both been truthful about how they were paying staff, Fabricius said, because they were already using a payment agent rather than a bank. He agreed that “the failure to disclose this material fact is highly objectionable,” the judge said.

“In this context it was argued, and in my view correctly so, that in addition to suffering no prejudice the [Gupta companies] also do have a suitable alternative remedy,” Fabricius wrote.

The Gupta families have told staff that the failure of their legal bid would mean they would not be able to make salary payments, and have launched a public campaign to that effect.
An apparently unrelated online campaign has made it clear that the fate of 7 500 staff hang in the balance, and that failure to gain an interdict would show that justice had been captured by white monopoly capital.

But the companies “will be perfectly capable of paying their employees and suppliers”, said Fabricius. They could use foreign bank accounts to pay local pay agents, or get their own debtors to pay the pay agents, who could then distribute the money. The companies’ assertion that they would suffer “was not real,” said Fabricius.

The various allegations of state capture and other breaches by the Gupta family makes up eight pages of the judgment. The Bank of Baroda does not need to prove any of the allegations, said Fabricius, but nor can the bank – or he – ignore their existence.

“I am obviously also not in a position to comment, save to say the following: when reading details of the various allegations ... I could not help to wonder whether, unbeknown to me, democracy and the rule of law had somehow been suspended ... Could it be possible that the future, so bright in 1994, was now only history? Do the constitutional obligations imposed upon the Prosecuting Authority… still exist? Do the various investigating bodies of the Police Service ... 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 concern each and every one of us.”

Phillip de Wet

Phillip de Wet

Phillip de Wet writes about politics, society, economics, and the areas where these collide. He has never been anything other than a journalist, though he has been involved in starting new newspapers, magazines and websites, a suspiciously large percentage of which are no longer in business. PGP fingerprint: CF74 7B0F F037 ACB9 779C 902B 793C 8781 4548 D165 Read more from Phillip de Wet

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