Atul Gupta is seeking to have his South African passport issued.

 

The Department of Home Affairs is opposing the application

 

Gupta's legal team has filed a court application, seeking an order ompelling the director-general and home affairs minister to furnish     his record of decision for refusing the passport.

 

The lawyer representing one of the Gupta brothers has filed a fresh application, seeking an order compelling the Department of Home Affairs to file a record and reasons for its decision on its refusal to issue his client with a passport. The papers were filed in the Gauteng High Court in Pretoria last week. 

 

The respondents in the matter are the director-general of home affairs and Minister Aaron Motsoaledi. Atul Gupta, who fled South Africa for Dubai amid corruption allegations,

approached the court in January in a bid to have his South African passport issued.

 

In his application, he argued that the home affairs director-general's failure to grant his passport application was unlawful and reviewable. The department is opposing the application.

 

Speaking to News24 on Tuesday, Gupta's attorney Rudi Krause said, despite Motsoaledi's public statements that his client would not be issued with a passport, he had so far not provided the record of decision.  He had also not filed an answering affidavit, Krause said.

 

Decision

 

"The minister boldly said he has taken a decision not to issue Mr Gupta with a new passport [and] now the fundamental problem is, it's not the minister's decision... it is the decision of the Director-General.

 

He said:  So, if the minister has taken that decision, we want to see on what legal basis the minister claims to have made the decision which he is not entitled to make in law. "We have found his public statement to be legally flawed," he added.

 

The main application was brought in terms of Rule 53 - which determines that an organ of state that takes an administrative decision must provide the court, upon application, with the record of decision, he said.  "So, there must be an official record of the decision that the minister took," he said.

 

Krause said:  It is just reckless of a minister to behave in this fashion. "They [the respondents] have also served us with a Rule 47 notice requiring of Mr Gupta to put up security for costs which we've told them we are not going to do.  "How can the government expect a citizen of this country who wants to exercise their constitutional right to put up security for costs? We've told them in writing, we are not going to put up security for costs. [They should ] bring an application so that we can argue this in court; they have not brought that application either." In his affidavit filed in court, on behalf of his client, Krause said: "At the time of deposing to this affidavit, the respondents have still

not filed the record of decision with the registrar. Instead the second respondent (Minister Motsoaledi) is quoted in the media as saying that he has garnered a top legal team and that he will resist any effort by the applicant to be issued with a South African passport.

 

"Despite the approach that the second respondent [minister] has taken publicly, the respondents remain in default of filing a record of decision and simply complying with the rules of the court as all parties are obliged to do."

 

Pressure

 

Krause said the DG and the minister were not only in default of compliance with the notice of motion and the rules of court, but also in contempt of court “by virtue of their flagrant disregard for the Rules of this Court”.

 

Asked for comment on the matter, spokesperson for the Home Affairs minister, Siya Qoza said: "The Department is defending the matter and is giving this application the requisite attention." 

The controversial Gupta family left South Africa for Dubai under increasing pressure due to allegations that they influenced former president Jacob Zuma's Cabinet appointments.

 

South Africa has been engaging with the United Arab Emirates for some family members and their associates' extradition.  But according to Justice Minister Ronald Lamola, the UAE was not

cooperating, News24 reported.  Meanwhile, in his application filed in January, Gupta said:

My circumstances and business activities in South Africa are well known, and it would not be inappropriate to describe myself as having a public profile. I have been the subject of speculation and reporting by the media, much of which is inaccurate. The simple factual position is that I have not been charged with any criminal offence under South African or any other law, and there had been no credible suggestion that any such charges are to be proffered against me.