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High Court criticise NPA on State Capture matter

by Thys Khiba
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Free State High Court

By Thys Khiba – The Free State High Court has thrown away the Vrede Dairy Project matter linked to state captured, which involved provincial department of agriculture and entities linked to the Gupta family on Monday.

The state capture accused are acquitted before they were even asked to defend the case.

According to the court, prosecutors failed to “pass even the barest of thresholds” to establish criminal liability for the accused.

?DOWNLOAD? State Capture Report: The Chairperson of the Commission Chief Justice Raymond Zondo handed over the final report to President Cyril Ramaphosa at the Union Buildings on Wednesday, 22 June 2022.

Premier Mxolosi Dukwana has noted the acquittal of the accused with disappointment, as he believes this was part of the web of state capture in the province.

Mxolosi shared the view of the court that, the pronounced acquittal “will evoke a sense of loss, if not dejection’ among citizens.”

Premier spokesperson Sello Dithebe indicated Dukwana has called on criminal justice system to work “smart, to shut what loopholes there may be in outstanding cases, from the web of state capture.”

Premier Dukwana recommits the Free State Government to combatting malfeasance and corruption, and prioritise service delivery in the Free State,” said Dithebe.

Mxolisi Dukwana New Free State Premier

Mxolisi Dukwana New Free State Premier

At least eight people, including former head of the department were charged with corruption and fraud. Officials from the department and others were accused of paying almost R25m to Gupta-linked company Nulane Investments.

The project that was aimed to empower black farmers wasestablished in 2012 by the Free State provincial department of agriculture and rural development.

The community, however, was side-lined as other parties, with ties to the Guptas, allegedly benefited unlawfully instead.

The Free State High Court acting judge Nompumelelo Gushawas called on by all the accused (except one) to have the charges dropped. This comes before the accused themselves had even presented any of their own witnesses or testimony.

Gusha criticised other witnesses as merely having knowledge of how processes were supposed to work, and none of what actually happened.

The acting judge assessed state’s case and found problems with every witness and evidence presented by the state.

The court noted that no witness could testify to the authenticity of any document. Where they gave their version of events, it served little purpose since the original documents they relied on were not before the court.

In Court:

Other important documents were different from those the witnesses had sight of.

A relevant example is of a Deloitte employee who testified he “conducted the feasibility study and produced a report,” but “the report that [was] served before the court…is not what he and his team produced and handed in.”

Therefore he failed to assist the court on the matter.

The state attempted to link the Gupta empire to the department by allowing one witness who worked for Absa to testify.

The witness who was employed by Absa testified about a particular Absa facility used by Sahara Computers, founded by Atul Gupta. This was regarded as nothing as the Absa employee indicated a client “would [not] necessarily have authorised each transaction” with that facility.

The court heard that Gupta delegated authorisation to others. She told the court that the state had never asked that she check “who of the operators…was responsible for transactions.”

“Information was readily available and would have been furnished has it been requested by the state.”

The acting judge noted the findings of the NPA’s financial investigator who analysed various bank statements and made adverse findings pertaining to another Gupta-linked company, Islandsite Investments.

He admitted he had made “a fundamental error and started with the wrong opening balance“ in his  calculations.

This then “led him to making the erroneous finding in his report.”

“To say that the manner in which this investigation was conducted is a comedy of errors would be the understatement of the millennia [sic],” said Gusha in her judgement.

The Investigating Directorate head, Andrea Johnson said they will e reflecting on the judgement with a view to determine legal avenues to explore.

“The outcome of this case has no bearing on our ability to prosecute other state capture cases.

We remain resolute in our commitment and ability to vigorously prosecute those responsible for state capture and corruption.”

Gusha concluded by saying that all she heard “was the ineptitude of the investigators,” and “lackadaisical manner in which evidence and disputed documents [were] handled.”

“The decision I reach… will invoke a sense of loss, if not dejection, to the citizenry of this country. It is an inescapable fact that almost R25m of taxpayers’ money left the fiscus.

The question that remains is why and who facilitated is why and who facilitated this.

“Regrettably… the institutions responsible to answer those questions failed. With their concessions, [state’s own witnesses] put the death knell on the state’s case,” said Gusha.

 

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