Here's how under pressure, overworked prosecutors allowed a Gupta winning streak

2018-06-03 06:00

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‘Stretched”, “overwhelmed” and “under pressure” – is why prosecutors responsible for seizing the Gupta family’s assets have lost against their lawyers three times in three months.

And insiders at the National Prosecuting Authority (NPA), close to the Specialised Commercial Crime Unit (SCCU) which is directing the criminal investigation into state capture, say that so far they have “absolutely nothing” against Gupta business partner and former president Jacob Zuma’s son, Duduzane.

This week, the state lost to the Guptas for a third time, as Free State High Court Judge Philip Loubser ordered the unfreezing of R250m of the family’s assets. These had been preserved by an order from the same court in January.

This was money that the family, their companies and acolytes allegedly looted from the Free State agriculture department through the failed Vrede Dairy Project.

Loubser ruled he had seen no evidence that created “reasonable grounds” to believe that the Guptas or their companies “may one day be convicted of the offences alleged”.

The NPA is waiting for his full judgment before deciding on a course of action.

The SCCU is led by acting head, advocate Malini Govender, and the Asset Forfeiture Unit (AFU) by acting head, advocate Knox Molelle. They have been tasked with pursuing the Guptas and their companies, and ensuring the money the family allegedly made through corruption remains in the country.

But four senior NPA insiders this week painted a picture of a team in disarray, beset by lost opportunities and battling to put together a winnable case. They claim that:

. Govender was advised to approve the arrest of Ajay Gupta for allegedly trying to bribe former deputy finance minister Mcebisi Jonas before December last year already. But Gupta fled the country and is a fugitive from justice who will be difficult bring back to South Africa;

. Their strategy to first bring civil claims against the Guptas and preserve their assets, before pursuing criminal cases, has so far failed spectacularly;

. The AFU is unhappy that the “criminal investigation has been very sloppy” and that access to the docket has been limited to those prosecutors working on the criminal case; and

. Some AFU staff feel they have been set up for failure, claiming the SCCU has been keeping the dockets and not sharing information.

However, NPA spokesperson Luvuyo Mfaku said: “We dismiss the assertion with the contempt it deserves. The prosecution, the AFU and the investigation team have been working closely since the inception of the Estina project. It is therefore highly mischievous to suggest that there was no sharing of information.”

He denied claims that the SCCU ignored advice to arrest Ajay Gupta, identified as a fugitive after failing to hand himself to the Hawks after a raid on the family’s Saxonwold, Johannesburg, compound in April.

“Investigations into the Jonas matter are ongoing. The NPA has gone on record and stated that the investigation team advised that it had sufficient measures in place to monitor the Guptas,” he said.

“The prosecutors have guided the investigations into the matter. We do not comment on the status of investigations.”

Mfaku said the state is confident of its criminal case.

“Efforts have been made from the outset to fast-track investigations and ensure that admissible evidence is gathered, thus ensuring that the state has a strong case,” he said.

PROSECUTORS’ CLAIMS

One prosecutor close to the team blames National Director of Public Prosecutions Shaun Abrahams for interfering with the investigation early on.

“The main issue was interference by the boss last year. First, he blocked the AFU from doing any cases. Then, civil society compelled him to start doing it, so now some cases are being done, but everything is being done under huge pressure without proper time for preparation,” he said.

Other prosecutors told City Press that some members of the AFU have complained about not receiving adequate cooperation from the investigation team led by Govender. She is responsible for guiding the Hawks’ investigators and compiling a criminal case against the Gupta brothers and their associates.

“Evidence uncovered during the criminal investigation that could be used to secure the seizure of the assets is being withheld. This is demoralising,” charged a prosecutor close to the AFU team.

Another prosecutor said Govender was advised late last year to approve the arrest of Gupta, for allegedly trying to bribe Jonas.

A prosecutor with knowledge of the discussions said it was recommended to her that she should ask Jonas to depose an affidavit swearing that the elder Gupta brother offered him the finance minister’s job and a R600m bribe.

It was then recommended that Gupta be arrested “on charges of bribery and corruption” on the strength of that affidavit. This would have ensured that he did not skip the country while other investigations were under way.

“She was warned that the Gupta brothers owned assets both locally and internationally, and that created a risk. They were not even supposed to know that they are being investigated in the first place,” said the prosecutor.

“At the time, the investigation into the Estina project was at an advanced stage, but there was just no interest in having the Gupta brothers and Mosebenzi Zwane, even though a December deadline was being touted.”

Zwane was Free State agriculture MEC at the time of the alleged looting and helped facilitate the dairy project for the family.

Instead of going the criminal route, the NPA decided to pursue them using the civil asset forfeiture process. This was “aimed at testing the waters before the criminal case can be brought to court”, another source said.

Jonas made a detailed statement to Hawks Major General Zinhle Mnonopi detailing how Fana Hlongwane and Duduzane Zuma called him to a meeting at the Hyatt hotel in Rosebank, and then took him to the Guptas’ Saxonwold mansion, where he was offered the job.

Last month, Justice Minister Michael Masutha said efforts to bring the Gupta brothers back to the country are under way, through an extradition process and mutual legal assistance agreements with the United Arab Emirates.

WHAT THE GUPTAS WON

Besides this week’s high court ruling unfreezing the family’s assets – the second time it has happened in this case this year – the Guptas also claimed victory in the Pretoria High Court. There the NPA withdrew its bid to freeze the family’s Optimum and Koornfontein mine rehabilitation trusts.

Instead of being preserved, the estimated R1.7bn was transferred from the family’s Bank of Baroda account to the department of mineral resources.

In March, the Free State High Court ruled that R10m in Atul Gupta’s personal bank account be unfrozen.

The state’s case appeared to have been undone by the fact that payments went from the Estina bank account to a Bank of Baroda account and from there to an account of Gupta holding company Oakbay.

And while the state tried to prove that Oakbay was directly receiving funds unlawfully from Estina, it did not account for the fact that the Bank of Baroda account was a “pool account” used by as many as 750 other clients. This prompted Loubser to rule: “The pool account is therefore not a reflection of the flow of funds of specific clients.”

Read more on:    npa  |  guptas

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