The Gupta family allegedly sucked the life out of Optimum mine and now their proxy is fighting for what is left over
A Gupta family company launched an urgent court bid last week which, if successful, would enable it to take more than R1 billion out of the country.
The company, called Centaur Ventures, which is reportedly 50% owned by Gupta nephew-in-law Akash Garg Jahajgarhia, is based in tax haven Bermuda.
It is now fighting tooth and nail in the High Court in Pretoria to defend a R1 billion claim in the family’s former Optimum Coal Mine’s business rescue – and in doing so, ensure that Eskom, which has a R2.8 billion claim against the firm, cannot claim it.
Centaur is also seeking relief, which may prevent a new investor from helping the mine and paying its workers, who have not been paid since October and are owed more than R250 million.
Centaur told City Press that this is not the point, adding that it merely wanted a chance to objectively assess the proposed investment and its effect on the company’s claim.
Centaur also denied that Jahajgarhia owned any shares in the company or had any Gupta business links, when asked by City Press.
However, an association has been alleged by Optimum’s business rescue practitioners (BRPs).
This is supported by former public protector Thuli Madonsela’s report on state capture, as well as by several media investigations and the #Guptaleaks emails.
Jahajgarhia married the Gupta brothers’ niece, Vega, at the infamous Sun City wedding that thrust the family into the national spotlight.
Centaur, however, also faces serious new allegations.
The allegations, contained in a February 21 letter from Optimum’s BRPs, include one that Gupta-controlled Optimum and Centaur worked together to pillage the beleaguered mining company for the Gupta company network – Oakbay and Tegeta Exploration and Resources – which was partly owned by Duduzane Zuma.
In their letter, the BRPs alleged that Optimum Mine’s manager, Nitin Singh, who signed the coal invoices with Centaur, told them that Centaur was “a related party belonging to the Guptas”.
They also claim that Optimum general manager Howard Pyoos told them that Centaur’s coal contracts were negotiated mainly by “Ajay Gupta’s son”.
But Centaur, a coal trading company, denies knowledge of the money’s movements to Oakbay and Tegeta.
In its application last week, Centaur said it was merely an independent creditor trying to protect its own R1 billion claim on Optimum against the “abject incompetence” of the BRPs.
However, the BRPs claim that Centaur paid Optimum R2 billion for coal, knowing the latter would not receive most of it. Instead of benefiting Optimum, most of the payment, R1.2 billion, was transferred the very next day to Tegeta and Oakbay.
“It would not have been possible to make these ostensibly fraudulent transfers without your client’s [Centaur’s] payments to [Optimum], for which it could not reasonably have expected to receive sufficient coal in return,” said BRPs Louis Klopper and Kurt Knoop, through their lawyer, in their letter to Centaur.
It is these payments for undelivered coal that set up Centaur’s case to be declared Optimum’s largest creditor – and, if Centaur is successful, would allow it to take its R1 billion offshore.
In January, Centaur also launched a separate court application against Eskom in a bid to destroy the power utility’s R2.8 billion claim against Optimum.
The BRPs, however, agree with Centaur that Eskom’s claim, which consists mainly of penalties for bad-quality and insufficient coal, is inflated.
They are trying to negotiate the Eskom claim down to R1.1 billion while still giving Eskom its full voting rights, which would make Centaur powerless in the business rescue.
WHO’S THE BOSS?
Centaur’s aim, in its cases against Eskom and the BRPs, is to make itself Optimum’s largest creditor, allowing it to call the shots and recoup the money it paid for the coal it did not receive.
That is the same money that allegedly was sucked into the rest of the Gupta network overnight, to the detriment of Optimum’s operations, workers and Eskom’s coal supply.
Centaur’s lawyers shot back, saying the company “has no knowledge of the internal operation of Optimum”.
In its court papers, the company complains that it was not a Gupta conspiracy, but rather, the BRPs who have “run Optimum into the ground” and treated a legitimate creditor, Centaur, with “dismissive contempt”.
Centaur also claims that the BRPs colluded with Eskom to take control of the business rescue by agreeing to its massive claim, which would override all other creditors when they vote on Optimum’s future.
Centaur says it believes that the BRPs are doing this to inflate their fees, with Eskom’s support.
Centaur’s new application last week challenges the provision of R1 billion in post-commencement finance –money provided after the start of business rescue which must be repaid before existing creditors are paid.
This money is coming from a consortium consisting of state-owned African Exploration Mining and Finance Corporation (AEMFC) as well as local coal company Lurco Group. This would add another creditor in addition to Eskom, further diluting Centaur’s vote and monetary claim.
Centaur wants the BRPs to first provide a long list of documents it says it needs in order to understand the effect of the financing on its own claim and voting rights. In practice, this will halt the finance deal.
Centaur’s two court bids follow a slew of Gupta attempts to apparently gain control over Optimum’s business rescue, or to claim the biggest slice of the R2.5 billion dividend that could flow from a sale of the mine and its valuable export allocation at the Richards Bay Coal Terminal in KwaZulu-Natal.
Earlier attempts to gain control over Optimum include:
. A failed buyout by a disguised Gupta company operating out of Switzerland, called Charles King, last year, and
. A disputed claim for a R2.6 billion “loan account” against Optimum to be recognised in favour of Tegeta which heads to court soon.
This application was brought in November last year by Oakbay Investments. It asks for the Optimum BRPs to be removed because they do not recognise this claim.
If this high court case succeeds, the Gupta companies that sucked money out of Optimum would receive all the proceeds of its sale.
The new allegations of Gupta-controlled Optimum dealing “recklessly and/or fraudulently” with other Gupta companies are based on investigative findings, say the rescue practitioners in their letter.
. Centaur’s invoices from Optimum “never tied up to the contracts or payments received”, and management explained this by saying that Centaur was a “related company belonging to the Guptas”;
. Centaur prepaid for coal it knew would never be delivered; and
. Of the R2 billion Centaur paid Optimum for coal, R1.2 billion went to Tegeta the next day and R479 million then went to Oakbay “without legal basis”.
The BRPs have threatened to send evidence of these suspicious payments to the “appropriate authority for further investigation and possible prosecution”.
Centaur’s lawyers responded to the letter by calling these accusations “baseless and defamatory” and saying they were “contrived” to avoid dealing with Centaur’s concerns around how the business rescue had been conducted.
These new accusations follow previous ones by the BRPs about other ways the Guptas allegedly squeezed money out of Optimum and made very little investment in its long-term survival.
In previous reports to creditors, the BRPs accused the Guptas of trying to direct money out of Optimum by rerouting value-added tax refunds of R90 million that were owed to Optimum.
In January, the BRPs, in a letter to Optimum creditors, accused the Guptas of not making “any meaningful investment” in Optimum and related Koornfontein mines, causing a “steady decline of the operational capabilities”.
SAVIOUR IN THE WINGS
The finance deal with AEMFC and Lurco would inject R1 billion into Optimum, pay workers and get the mine operating again after staff downed tools late last year.
The AEMFC consortium would also get a management contract and, possibly, eventually buy Optimum.
In response to questions, Lurco spokesperson Kim Polley said the consortium was “currently working with the BRPs to appropriately allocate and prioritise deployment of the capital”.
“The AEMFC consortium has undertaken a robust due diligence assessment of Optimum Coal and its associated assets. We are assessing all elements currently constraining mine efficiency and believe the capital we have allocated is in line with the requirements of our delivery plan,” she said.
“The consortium remains committed to delivering an Optimum Coal at stable production levels, prioritising the sustainable employment of its people and the energy security of South Africa.”