The Transnet Second Defined Benefit Fund obtained an Anton Piller order at the High Court in Johannesburg that allows for a wide-ranging search and seizure of key “evidence” in its ongoing legal case against several companies in the Regiments stable.

Scorpio has confirmed that commencement of the execution of the order has begun at at the Illovo, Johannesburg, office of Regiments under the supervision of a court-appointed independent supervising attorney. Regiments declined to comment. The search is restricted to business hours.

The exceptional court order covers a search and seizure of all drives and servers for, among other things, original copies of documents, electronic records, ledger accounts and any mandate involving state-owned entities or any other organ of state between January 2013 and September 2016.

It lists communication between Regiments or its agents and members of the Gupta family, Salim Essa, Ashok Narayan, Kuben Moodley, Eric Wood (of Trillian Capital Partners) as well as several controversial “letterbox” companies including Homix Pty Ltd, Forsure Consulting, Fortime Consultants and Gateway Ltd. And it also includes:

• Any ledger accounts of the Regiments companies that relate to the Transnet Club Loan and swaps executed with the Fund by Transnet and or Nedbank.
• Any ledger accounts, contracts or draft documents of Regiments companies relating to business development partners over any part of the period January 2013 to September 2016.
• And, any records of payments by any Regiments companies into a central Bank of Baroda account and all invoices relating to such payments.

Furthermore, it directs Regiments directors and owners, Litha Nyhonyha and Niven Pillay, to allow access to the company’s electronic network, desktop computers, laptops, tablets, portable information storage devices, flash drives, CD’s, DVD’s, stiffy and floppy disks, zip drives, data cartridges, memory sticks, mobile phones and SIM cards.

It includes access to Cloud hosting and Dropbox, virtual servers and other data facilities hosted locally or internationally which Regiments may have control over.

Forensic and IT specialists would be permitted to make copies to examine and capture anything that could contain evidence and once a detailed inventory is submitted to the court, Regiments would have to show cause why the order should not be made final.

Transnet’s application was accompanied by an affidavit from Petrus Johannes Jacobus Maritz, principal officer of the Pension Fund.

It kicks off with the reason for the urgent, ex parte application: An article by amaBhungane journalist Susan Comrie detailing Regiments’ alleged involvement in a criminal and money laundering enterprise in which hundreds of billions of rand of public funds have been looted from state organs and diverted to Gupta-linked companies and their associates.

“The criminal money laundering enterprise is directly relevant to issues in the principal action (between Transnet Pension Fund and Regiments) where the Fund sues the responds for repayment of R229-million misappropriated from the Fund by the respondents and alleges that the money was misappropriated pursuant to a conspiracy to contribute to the purchase of Optimum Coal Mine by the Gupta family company, Tegeta Exploration and Resources,” says Maritz.

The article and documents published by amaBhungane “give lie to the repeated statements under oath” by Regiments in which they disavow any involvement or knowledge of dodgy dealings involving the Guptas and in terms of which Regiments have sought to pin the blame for such activities exclusively on their former partner, Eric Wood of Trillian Capital Partners.

Maritz said the documents referred to in the amaBhungane investigation provide “evidence” that, notwithstanding Regiments’ repeated protestations of innocence, Pillay was “directly” involved in the arrangements with Essa and Narayan relating to the portfolio management agreements that the company had with the Fund.

“His signature (also) appears on the November 2012 ‘business development’ contract between Regiments and Gateway Limited, the Dubai-based front company for the Guptas through which public funds of the Free State provincial government were laundered in September 2013 to pay for the Gupta family wedding at Sun City,” said Maritz.

Anton Piller orders are rare and used only in exceptional circumstances when private litigants fear that evidence may be destroyed pending the outcome of a legal challenge.

That the Fund has now taken this drastic measure to preserve what it believes to be evidence – remarkably, on the back of investigative journalism – of Regiments’ complicity in the alleged Gupta-linked money laundering activities does not bode well for the company and whatever reputation it has left.

The company’s battle with Transnet goes back more than a year and relates to a contract it had with Transnet Second Defined Pension Fund and payments made to one of the Gupta-linked supplier development partners which had no role or contract with the Fund.

In March 2018 Regiments was ordered to put R430-million in Capitec shares in escrow pending the outcome of the case brought against the company by the pension fund, alternatively to provide a bank guarantee as security to that amount with its attorneys.

Transnet, represented by Moeti Kanyane Attorneys, went back to court in July when it obtained an anti-dissipation interdict claiming Regiments had not complied with the initial order to put up security against the Fund’s claim. There appears to be an intention to appeal that order by Regiments; however, it is unclear how the Anton Piller order may impact on that leg of this battle. DM

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