Guptas vs NPA: Vicious battle to claim crucial court victory

The National Prosecuting Authority’s “do or die” battle to retain control over R250-million in Gupta assets should be decided in the coming weeks – but already both the state and the Guptas are trying to claim victory.

And that’s understandable‚ given that the fight over the preservation of the Gupta assets is linked directly to the strength of the Estina “scam” case against them.

The Guptas and their associates are adamant that there is little to no evidence that will lead to them being convicted on charges of money-laundering and fraud linked to the Vrede Dairy Project‚ which the Guptas have always insisted they were not involved in and did not benefit from.

But the state insists it has more than enough evidence to show that Gupta-linked companies benefited corruptly from the alleged scam – and to justify the freezing of their assets‚ which include 43 residential‚ farm and business properties‚ two aircraft‚ a helicopter‚ a Porsche‚ Lamborghini‚ Range Rovers and other cars and Bank accounts belonging to Oakbay Investments and Sahara Computers. These assets will be subject to confiscation if and when the state succeeds in convicting those implicated in the alleged scam – and it can be shown that certain companies or individuals benefited from that scam.

In argument‚ advocate Wim Trengove‚ representing the NPA‚ has questioned why the Guptas have so far failed to produce any evidence that shows their innocence.

“They merely deny the NDPP’s evidence and contend that his case is deficient in various respects. But they do not offer any evidence of what‚ they say‚ the truth is.

“They are of course entitled to remain silent but they must then accept that this court will take their attacks on the NDPP’s evidence with a pinch of salt because there is no competing version on record‚” he said.

In papers filed at the Bloemfontein High Court on May 11‚ Acting Special Director of Public Prosecutions‚ Knorx Molelle‚ said the state can show that Gupta-owned Westdawn Investments was paid nearly R200-million from Estina’s Standard Bank account.

Westdawn is the company that reportedly owned a Bombardier Aerospace jet used to transport then Deputy President Cyril Ramaphosa to Tokyo nearly three years ago.

But the Gupta’s advocate Mike Hellens said the state has failed to back up this claim with any real evidence – and again slammed its bid to freeze his clients’ assets as an “embarrassment”.

And‚ perhaps strangely‚ the state did not pursue the claim that Westdawn received R200-million from Estina when it fought to retain control of the Guptas assets. Instead‚ Trengove stated that Westdawn had received an “affected gift” of R5-million from Estina.

Hellens successfully challenged the freezing of Gupta assets linked to the Estina prosecution earlier this year after arguing that the state had failed to understand banking processes and confused transactions conducted by Bank of Baroda’s Nedbank pool account with those conducted by the Estina bank account.

The Guptas slammed the case for the freezing of their assets as “entirely deficient based as it on hearsay and incomplete‚ inaccurate and misleading allegations” and “deeply and fundamentally flawed”. They further insisted there were “innocent explanations” for why Estina’s sole director paid millions to the Gupta-linked Oakbay‚ Annex Distribution and Aerohaven companies.

Gupta-owned Oakbay and Aerohaven claimed they gave “loans” to Estina’s sole director Kamal Vasram during the same period that Estina began its allegedly corrupt Vrede Dairy Project scheme.

But Trengove argues that these transactions show all the hallmarks of money-laundering‚ and demonstrate that Gupta entities did receive the proceeds of the Estina crimes. He gave this timeline to make that argument:

“On 18 April 2013 the Department of Agriculture paid an amount of R34‚950‚000 into Estina’s Standard Bank account.The following day‚ on 19 April 2013‚ Estina transferred an amount of R10-million of the money received from the Department to its Baroda account.

“On 19 April 2013‚ Estina transferred the amount of R10-million in its Baroda account to a fixed deposit account with Baroda.

“On 19 April 2013 Mr Vasram wrote two bizarre letters to Baroda. In his capacity as director of Estina‚ he asked Baroda to make a loan of R9.5-million to him in his personal capacity but to deposit the amount of the loan into Oakbay’s account.

“Despite the purported loan Mr Vasram sought from Baroda‚ Estina in fact paid the amount of R9.5-million to Oakbay directly from its Baroda account. It paid an amount of R5-million on 19 April 2013 and the balance of R4.5-million on 22 April 2013‚” Trengove said.

He added: “These transactions make two things very clear. The first is that the amount of R9‚5m flowed from the Department‚ via Estina’s Standard Bank and Baroda accounts‚ to Oakbay… The flow of money was moreover dressed up as a loan to Mr Vasram but the pretence of a loan was clearly false.”

In other words‚ Trengove argues‚ there is clear evidence that Gupta entities did benefit from the proceeds of the alleged Estina crime – and were embroiled in alleged money-laundering.

It’s now for the Bloemfontein High Court to decide whether the state’s case that R250-million of Gupta assets should be frozen – pending the finalization of its criminal case – can be justified based on the evidence the NPA has produced.

Judgment has been reserved.