Bankers give Guptas extra time to keep records secret

NEWS ANALYSIS

The Bank of Baroda has given the Gupta family and their associates until March 21 to launch legal action to keep their banking records secret in what appears to be a play for time.

Should any of the Gupta brothers or a corporate persona of their associate Salim Essa launch such action, it would delay the release of the records for the duration of what could be a lengthy case.

Lawyers for the bank this week told affected parties it had decided to grant a request for the records lodged in terms of the Promotion of Access to Information Act (Paia) on November 17.

That November request kicked off a 60 day period for Baroda to notify the Guptas, as affected third parties, of the request, then make a decision on whether or not to grant the request. The bank used that full period before making the decision on January 17.

In terms of the law, the Guptas would have another 30 days in which to go to court to fight that decision. Instead Baroda has given them an extra 30 days, for a total of 60, to do so, pushing the matter out until late March.

The letter was first made public by financial services executive Magda Wierzycka on Saturday, who said it would see Gupta banking records being put into the public domain soon.

However, the letter actually suggested otherwise.

Public interest outweighed the normal confidentiality of banking records, Baroda’s lawyers wrote. “Our client is also of the view that an appropriate confidentiality regime, as tendered by the requesters, may mitigate any harm of disclosure.”

On top of its belief that the records would not become public, Baroda had decided to give the Guptas an extra 30 days to go to court as “it is of the view that a longer period would duly enable any third party, seeking injunctive relief, a proper opportunity to do so.”

Civil society organisations have lodged a variety of complaints about Baroda in light of allegations of its intimate involvement in state capture and money laundering, with the Organisation Undoing Tax Abuse (Outa) vowing to put it out of business.

This week’s Paia decision appears to keep Baroda in line with the law, leaving little opportunity to cite a breach of Paia as reason its banking licence should be revoked. Yet if its decision does eventually see Gupta banking records provided to the family’s foes, that will likely happen only long after the same records are secured by the upcoming state capture inquiry, which is to have powers of search and seizure.

Baroda said it had decided to accede to the Paia request because it was of the view that records would provide evidence of a contravention of the law, and because public interest outweighs potential harm. Its reasons were direct reproductions of the section of the Paia law that stipulates when it is mandatory for private bodies to provide access to records.

Baroda said that, during the previous 30 day window in which the Guptas and Essa could have objected to the disclosure of their records, they had failed to do so properly.

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Phillip De Wet
Guest Author

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