29/03/2017 13:27 SAST | Updated 30/03/2017 12:58 SAST

Gordhan vs Guptas: Ruling 'Crucial To Set Rules For Future Cases'

'It’s about the integrity of the banking system.'

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Absa argued in the North Gauteng High Court on Wednesday that it is important for the court to rule on Finance Minster Pravin Gordhan's declaratory order regarding Gupta-owned companies for legal clarity going forward.

The full bench has been questioning why a declaratory order is even required, and why Gordhan didn't simply apply for an interdict.

Gordhan's legal team, as well as the banks, have argued that the matter must be determined to provide clearer guidelines for banks and regulatory bodies.

Absa advocate David Unterhalter argued that there are further interests at stake in this relief.

"There is an important demarcation where public power ends and where private decisions are made," he argued.

"Drawing that line is fundamentally important to the minister and to the regulators and banks, who are subject the public powers. They need to know what realm they are subject to with regard to private and public laws."

He further argued that the banks and regulators need to know for the future where that line of demarcation takes place.

"It is important for people who take power in future (ie, new finance minister) and for banks to make decisions in future," he said.

"It's not just about how the Oakbay matter came to the appreciation of the minister. It's about the integrity of the banking system."

Citing Sahara's application on Monday concerning the separation of powers, he said there is a boundary between executive power and private power.

"That's why the courts are there to referee and pronounce upon," he said. "It does not interfere with the decision making of the minister. He (Gordhan) brought this here to ensure he has clarity on the matter for now and future."

Unterhalter accused Oakbay of contradictory statements with regards to its submission that it has no contention with the relief Gordhan seeks, but that it should be thrown out of court.

"They are not observing strictures of the law that they claim to accept," he said. "It is important that the court pronounce on this matter. It will discipline how people act in the future."