Court slams state‚ but refuses to throw out 'Gupta state capture' case

Ali Gule from NPO, Organisation Undoing Tax Abuse (Outa) holds a flag during a picket, 20 August 2018, outside the State Capture Inquiry in Parktown, Johannesburg. The inquiry was officially launched and is chaired by Deputy Chief Justice, Ray Zondo
Ali Gule from NPO, Organisation Undoing Tax Abuse (Outa) holds a flag during a picket, 20 August 2018, outside the State Capture Inquiry in Parktown, Johannesburg. The inquiry was officially launched and is chaired by Deputy Chief Justice, Ray Zondo
Image: Alaister Russell/The Sunday Times

The National Prosecuting Authority (NPA) has won a crucial victory in its “State Capture” prosecution campaign – with the Bloemfontein Magistrate’s Court refusing to strike the Estina Dairy Project case from the roll.

But the Court slammed the state for “reprehensible” delays in the finalisation of the case‚ and ordered it to provide all the accused in the trial with a finalised case docket and indictment by November 30.

That means the state must have its case finalised in just over two months. It has also agreed to relax the bail conditions of all the accused. The case has been postponed until December 4.

The ruling clearly came as a shock to the Estina accused‚ which include Gupta family and business associates‚ as well as former Free State Agriculture department officials. The Guptas’ nephew Varun had appeared upbeat when he arrived for the court appearance‚ and smiled and greeted journalists. After the ruling‚ he appeared shell-shocked. Another Gupta family member could be heard gasping after the decision was handed down.

Prosecutor Justice Bakamela had previously argued that the state needed time “to finalise financial investigation and continue extradition proceedings from the United Arab Emirates. Furthermore‚ the state needs a period of two to six months to finalise investigations.”

Magistrate Collin Nekosi found that the NPA had succeeded in providing sufficient reasons for why its requested postponement of the case was necessary. But he also criticised the state for a “lacuna in decision-making” that “has resulted in unreasonable delays in the completion of the proceedings‚ which if left unchecked could substantially prejudice the accused”.

“I’m left with the impression that there has been no momentum to the investigation as one would expect in a matter of this nature. This contributes to the delay by the state being even more reprehensible‚” he said.

Nekosi found‚ however‚ that the delay was not such that it warranted the “severest sanction” of the case being struck from the roll.

He also conceded that the damning High Court rulings made against the Asset Forfeiture Unit in its bid to freeze Gupta assets allegedly linked to the Estina scam may have fuelled the accused's belief “that there was no case to answer”.

The state insists it can prove that R250m intended for poor black farmers was siphoned into the bank accounts of Gupta families‚ but have failed twice to secure the freezing of Gupta assets it claims are linked to this criminal scheme.

Referring to one of the damning rulings made against the state by Judge Fouche Jordaan‚ Gupta advocate Mike Hellens argued that the decision basically told the NPA: “You are talking nonsense. You do not understand the flow of funds. You do not understand banking.”

But Nekosi said High Court rulings pointed the state to the deficiencies in its own investigation‚ and had shown it the forensic evidence “that is required if the state is to continue with prosecution”. “Only the state knows the true state of the investigation”‚ he added.

The Guptas’ lawyers have insisted that there is currently no real evidence against Gupta nephew Varun Gupta and associates Ashua Chawla‚ Kamal Vasram‚ Ronica Ragavan and Nazeem Howa – who all worked for the Gupta business empire.

By ordering the state to hand over a finalised docket by November 30‚ Nekosi has enabled them to find out if they’re right – or have woefully underestimated the NPA.

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