In June last year, South African-born entrepreneur Mark Shuttleworth ended the story of his landmark (and long-running) battle with the South African Reserve Bank.
In the judgement handed down by the Constitutional Court, Shuttleworth was told that the Reserve Bank has the right to hold onto the R250 million he wanted to take out of the country, and he will have to pay his own legal costs.
The Reserve Bank deducted the money from Shuttleworth’s R2.5 billion fortune when he took his last remaining funds out of the country. At the start of proceedings, the Reserve Bank was ordered by the Supreme Court of Appeal (SCOA) to pay back R250 million, but then the Constitutional Court – the highest court in the land – ruled otherwise.
Needless to say, it was a massive blow for Shuttleworth, and he is of the opinion that the judgement was fundamentally flawed.
“I felt the Constitutional Court profoundly failed to hold the government to account for its broad assertions of its inability to be effective without essentially an absolute right over those decisions. I fear that a future government will use this decision by the Constitutional Court in deeply anti-social ways to prevent South Africans from leaving effectively, or prevent South Africans from expressing their discontent with the economic management of the country by the government,” he told htxt.africa.
Since the ruling was made by the Constitutional Court, Shuttleworth has no other recourse, and has essentially lost that money. He does believe however, that the court will see the error in its ways.
“I was very disappointed. I feel that in the fullness of time, the court’s decision will come to be viewed poorly. Nonetheless, it is the final decision in the matter,” he continued.
Shuttleworth added that for him, it wasn’t about Shuttleworth vs Reserve Bank, but about the rights of every South African to invest abroad.
“So the core issue for me is about your right as a South African to invest and operate as a global citizen. I am very strongly of the view that it is deeply unhealthy to have the government decide whether or not you as an individual or organisation should or could invest outside of South Africa. I think South Africa is deeply unusual in retaining operation control over those decisions for its citizens.”
What would he have liked to see?
“I was disappointed that the Constitutional Court failed to ask the government what is so different about South Africa that it needs to retain what are essentially apartheid-era controls over economic decisions.”
During the lengthy court battle, Shuttleworth said that he would use the R250 million owed to him to set up a fund to help lawyers with Constitutional Court cases. With the funds no longer in play, Shuttleworth isn’t so sure that it would have helped anyway.
“I fear the decision of the court has failed the people that the constitution was effectively created to defend. I had hoped to put the proceeds specifically towards a fund for constitutional lawyers to take cases to the Constitutional Court. But in the end I fear the government has always had an asymmetric might in testing these questions. They can essentially fund lawyers forever, and an individual can’t. I felt that if the court has abdicated its responsibility for challenging the government to explain its position challenging the government to justify the positions that are at odds with the norm, then that money wouldn’t be particularly well spent anyway,” he concluded.[Image – CC by 2.0/WikiMedia]