ANALYSIS

NPA dropping Gupta charges on Estina Dairy does not inspire confidence

By Rebecca Davis 29 November 2018

Indian businessmen Ajay and Atul Gupta speak to the City Press from the New Age Newspaper’s offices in Midrand, Johannesburg, South Africa on 4 March 2011. (Photo by Gallo Images/City Press/Muntu Vilakazi)

Seven months have passed since eight people linked to the Guptas’ alleged Estina Dairy scam were arrested and appeared in court. But Wednesday brought the news that the charges against the suspects are to be dropped for now because the NPA does not have a sufficiently strong case. It’s probably a sensible decision — but it also raises troubling questions about why the NPA is taking so long to get its act together when it comes to the Guptas.

Let’s grit our teeth and look on the bright side. The NPA’s announcement on Wednesday that it is dropping charges against eight suspects accused of involvement in the Guptas’ alleged Estina Dairy scam does not mean that the Guptas are off the hook.

In the best case scenario, investigators simply need a little bit more time in order to build a watertight case, at which point charges will be brought once more.

Consider the alternative: The NPA heads to court with a weak docket based on an incomplete investigation. The court acquits the suspects. Game over — as the Constitution reminds us, every accused person has the right “not to be tried for an offence… for which that person has previously been either acquitted or convicted”.

The state had been granted a postponement of the case until 4 December, by which time it had to produce the goods to the defence or have the case struck off the roll.

Now, as things stand, the NPA can get its ducks in a row and then reinstate the prosecution, confident in the knowledge that it has a strong case.

From that perspective, the NPA’s decision is undoubtedly practical and necessary.

If the state prosecutors had botched the case, it would have been greeted with unbridled joy by the Guptas’ lawyers, who would have pointed to the fact that the Guptas have on four occasions so far also successfully fought court battles against having the family’s South African assets frozen.

On each occasion, Gupta representatives have triumphantly trumpeted that the state’s failure to seal the legal deal against the Guptas points to the family’s innocence of all wrongdoing and unwarranted persecution by South African authorities.

When the Free State High Court ruled in May that the Asset Forfeiture Unit had to release the Guptas’ assets, Judge Philip Loubser made it clear that his decision was based on his scepticism that criminal proceedings would ever succeed against the Guptas when it came to the Estina Dairy matter.

After scrutinising the evidence presented to him by the state, Judge Loubser’s conclusion was: “Reasonable grounds are lacking for believing that the [Gupta-linked companies] may one day be convicted of the offences alleged.”

Gupta lawyer Mike Hellens has previously accused the NPA and the police of “reckless incompetence” and “abuse of power” in their attempts to bring the Guptas to justice, and Wednesday’s NPA announcement will be seized upon as further evidence in this regard.

Appearing before the Zondo Commission in September on behalf of the Guptas, Hellens described the Estina Dairy investigation as being carried out by “incompetent people who have not worked out their case”.

It’s never a good feeling to find yourself in agreement with Mike Hellens, but on this occasion it’s tempting to say that he might just have a point.

The NPA has not elaborated on exactly why the Estina case is taking so long to pull together, and did not respond to requests for comment from Daily Maverick on Wednesday.

We know from the failure of the NPA to seize Gupta assets that one of the problems in the past was that the state was relying on computer printouts from a Bank of Baroda account to make the case that money was transferred from the Estina account, to the Bank of Baroda account, to the Gupta account.

The stumbling block at that point was that the Bank of Baroda account in question was a pool account servicing 750 clients, and the judge found that it could not be used as a reliable reflection of the “flow of funds of specific clients”.

This raises a troubling question: how sophisticated is the state’s ability to investigate complex financial crime?

Not very, according to former state prosecutor and current DA MP Glynnis Breytenbach.

Breytenbach has first-hand experience of this from her time in the NPA, and in a statement on Wednesday she stated the facts baldly:

The NPA has no forensic accounting capacity, and never had. This function has always been outsourced to private companies by the SAPS.”

Leaving aside the fact that this capacity should absolutely be part of the state’s prosecutory arsenal: Even if the NPA has to outsource this type of investigation, it is still unclear why the process of getting ducks into rows when it comes to the Guptas is taking so very long.

When the state asked for a postponement on the matter in August, prosecutor Justice Bakamela told the court that the NPA was awaiting information from authorities in the United Arab Emirates and India, pending the finalisation of Mutual Legal Assistance agreements with the countries.

But the Justice Department announced that the relevant treaties had been signed with the UAE in September, while the necessary agreements have been in place with India since 2005.

The treaties between the United Arab Emirates and South Africa have since been ratified by Parliament, Justice Department spokesperson Mukoni Rashitanga confirmed to Daily Maverick on Wednesday.

As such, South African investigators should, in theory, be receiving the assistance to which they are entitled from UAE and Indian authorities to investigate transnational aspects of alleged Gupta wrongdoing.

Almost 17 months have passed since reporting on the #GuptaLeaks emails, in June 2017, implicated the Guptas in the Estina Dairy matter. In the same month, the DA’s Breytenbach laid criminal charges of money laundering, fraud and corruption against the Guptas and their associates in relation to the scam.

We know that, at least initially, political interference played a role in the delays — with acting Hawks head Yolisa Matakata telling Parliament in February that the Shaun Abrahams-headed NPA was “hindering the progress of taking the matter to court”.

With Abrahams gone, hopes were high that the NPA would suddenly find new energy for the speedy prosecution of State Capture cases. In light of Wednesday’s announcement, however, it’s clearly much too soon to rejoice.

With charges withdrawn against the eight accused — who include Varun Gupta, former Oakbay chief executive Nazeem Howa and former Sahara chief executive Ashu Chawla — their bail conditions will fall away. They included the need to report to local police stations twice a week, surrender their passports, not interfere with any potential witnesses and not leave the provinces where they reside.

The eight will now be free to travel abroad — though in the case of Varun Gupta and Ashu Chawla, that’s nothing new. Both Gupta and Chawla previously successfully applied to visit India. Chawla is still there, on the basis that he is caring for his sick mother. In Gupta’s case, the Bloemfontein Magistrate’s Court granted him permission to travel to India in May — on the basis that “the state does not have a strong case against him”.

Judging from Wednesday’s announcement, not much has changed since. DM

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