Oakbay Responds to Application by Minister of Finance

19 October 2016

Yesterday afternoon, van Der Merwe Associates (“VDMA”) notified the Minister of Finance’s attorneys of their client’s (the Oakbay Group of companies) intention to oppose the application issued under case number 80978/16 on 14 October 2016 – unless the Minister of Finance withdraws the application and tenders costs by this afternoon – Wednesday 19 October.

[The law firm Van der Merwe Dorning and Associates - trading name VDMA - has written to point out that they do not act for or represent any member of the Gupta family or any of their business entities, including but not limited to Oakbay Investments and Optimum Mine trust. The use of the abbreviation "VDMA" to refer to "Van der Merwe & Associates"/"Gert van der Merwe" is thus improper, and should be desisted from by the media. - Politicsweb.]

VDMA’s letter noted that the Minister of Finance’s affidavit implicated its clients in inappropriate and unlawful conduct. The affidavit also insinuated that VDMA’s clients would “expose the fiscus not only to loss of tax revenue but also put the burden of mining rehabilitation on the fiscus.” which VDMA noted was“uncalled for, malicious and nothing but vexatious.”

VDMA’s client disproved this earlier this week with evidence of the transfer of the Optimum Rehabilitation Trust Fund from Standard Bank to Bank of Baroda, which followed a request by Advocate Thuli Madonsela on 4 October 2016.

VDMA advised its client to oppose the Minister of Finance’s application, obtain all the necessary information from the relevant role players and ask for punitive costs order against dismissal of the application.

VDMA’s letter also stated that the Minister of Finance’s letter has been launched with the financial resources of the tax payer. VDMA’s client does not dispute that Minister of Finance’s is not by law compelled or obliged to intervene in the relationship between VDMA’s clients and the commercial banks. However, VDMA noted that to spend tax payers’ money in “a reckless and inappropriate manner” would constitute a contravention of the provisions of the Public Management Act, No.1 of 1999 – which would warrant “further action against those officials responsible for same.”

Furthermore, VDMA noted that:

“In order that we do not expose the fiscus unnecessarily to costs we propose that the application be withdrawn” – that the Minister of Finance’s application is withdrawn and that the Minister of Finance’s tenders VDMA’s client’s costs, before close of business on 19 October 2016.

VDMA reiterated that the purpose of its letter was to offer the Minister of Finance the opportunity to save taxpayers money.

VDMA also noted that its clients “would like” to put their formal version before court since the Minister of Finance has chosen that forum, so if the application is not withdrawn then “the matter must proceed and we will gladly do the necessary in order to restore the misrepresentation created by the papers.”

VDMA concluded its letter by noting that the Minister of Finance had made“defamatory and untrue remarks towards members of the Gupta Family by insinuating that they have been involved in inappropriate conduct” and that“their rights remain strictly reserved.”

This morning, attorneys for the Minister of Finance declined the offer to withdraw the application and tender costs.

Issued by APO on behalf of Oakbay Investments Ltd, 19 October 2016