Guest Column

Contrary to what the media says, the Guptas didn't 'get away'

2018-06-03 12:07


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As a senior lawyer, an officer of the High Court of South Africa and leader of the Bar, I consider it my duty to raise a concern publicly and sound a word of caution when I see the rule of law being abrogated by the rule of the media.

Ordinary South Africans who in the absence of rational and informed voices in the public space seem only too eager to drink copiously from the font that is the supposed wisdom of “opinion makers” on esoteric matters of law they know little, if anything, about are caught up in that maelstrom.

That the Bar discourages its members from engaging in public debate on matters that are pending in the courts may be a contributing factor to the dominance in public media of ill-informed and dangerously misleading commentary on legal matters. Perhaps it is a prohibition that the Bar should consider revisiting. In an environment where uninformed legal commentary monopolises the public space, the rule of media supplants the rule of law.

We have seen examples of this in, among others, the persecution of former president Jacob Zuma in the media on a charge of which he had been acquitted by a court of law; the praising of former finance minister Pravin Gordhan for “winning” a case he had in fact lost as it was struck off the roll; and the excoriation of the Chief Justice Mogoeng Mogoeng for dissenting and characterising the majority’s judgment as judicial overreach in a case in which the media seemed intent on the opposite outcome.

The latest example of this phenomenon comes following this Monday’s high court order that the assets of the Gupta family be released from state capture – pun intended – because, said the court, there is no reasonable possibility that a confiscation order may be made.

Opinion makers went ballistic. They blamed everything from the incompetence of the prosecuting authority to the incompetence of the judge. One even ventured a theory that the national director of public prosecutions may have deliberately assigned people on the “prosecution” of the case and withheld resources from them so that they failed. It never occurred to any of them that perhaps the judge may have been right in his assessment of the evidence before him, and so came to the only reasonable conclusion on that evidence.

To them, that would not do because the script had long been written (by them) that the Guptas were guilty of state capture – a “criminal offence” of media invention from the Public Protector’s report titled State of Capture, and so everything they own is “proceeds of crime”.

So when the judge deviated from that script, either he or the prosecuting team was incompetent. This dangerous phenomenon poses a serious threat to the rule of law.

Let me hasten to state that I express no view on whether the judge was right or wrong in his finding. I am simply cautioning against the rule of the media and urge us all to get back to the rule of law.

The case was not a criminal prosecution. It was a civil case brought in terms of chapter 5 of the Prevention of Organised Crime Act. This is how it works:

. The Asset Forfeiture Unit (AFU) – a unit within the National Prosecuting Authority – seeks an interim restraint order from the high court to search the premises of the respondents – the Guptas – and seize all their “realisable property” if they are suspected of having committed a criminal offence. It matters not whether or not the assets themselves are “proceeds of crime”.

. The restraint order is obtained without giving notice to the respondents for fear they may hide or dispose of their assets;

. The order gives the respondents an opportunity to show cause, typically on 24 hours’ notice, why the restraint order should not be made final;

. If the respondents fail to show cause, the order is made final. That means the respondents cannot do anything with those assets and, where feasible, the assets are removed and placed in the care of a curator appointed by the court at the instance of the AFU;

. At this stage, all the AFU has to show is that there are reasonable grounds for believing that a confiscation order may be made against the respondents in respect of those assets. If it does, the restraint order will be made final. If it fails, the order will be discharged. That means the assets will be released from state capture.

A confiscation order is made only once a conviction has been secured on the criminal offence of which the respondents were suspected;

. Whether or not the order is made final, the prosecuting authority will, if it still believes that there are reasonable prospects of a successful prosecution, take the matter to trial on the alleged criminal offence. Just to be clear, there is no such thing as a “state capture” criminal offence. That offence is a media invention; and

. Once the respondents (now the accused) are convicted, the AFU will then apply for, and obtain, a confiscation order. If the respondents are acquitted, the respondents will be entitled to the release of their assets.

All that has happened in the case against the Guptas in the Bloemfontein High Court is that after granting the restraint order and affording the Guptas an opportunity to show cause why the restraint order should not be made final, the Guptas showed that there are no reasonable grounds for believing that a confiscation order may be made. In other words, they showed that there are no reasonable prospects of a successful prosecution.

That an expectation may have been created in the media that the Guptas’ guilt of “state capture” was a forgone conclusion when their properties were raided to much delirious applause is completely irrelevant.

This does not mean the end of the road for the prosecution of the alleged offences against the Guptas. It does not mean the judge is incompetent or that the prosecution is incompetent. At best, for those of us who believe in the system, it means that the rule of law still trumps the rule of media in South Africa.

- Ngalwana SC is with the Duma Nokwe Group of Advocates and chairs the General Council of the Bar of SA.


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