The National Prosecuting Authority seemingly has no intention of allowing delays that may be caused by efforts to extradite the Guptas to affect the start of a R24-million criminal case in the Free State.
It intends to apply in the coming weeks to separate the trial of their former associate Iqbal Sharma, his brother-in-law and three former government officials from that of their more prominent co-accused.
The Guptas are not in South Africa and the state has obtained arrest warrants for brothers Atul and Rajesh and their wives Chetali and Arti in connection with the case.
They are among a group facing charges relating to a 2011 contract awarded to Sharma’s company, Nulane Investments 204, to perform due diligence on what would later become the Estina Dairy Project.
Sharma, a former Gupta associate, allegedly outsourced the job to Deloitte Consulting for R1.5-million, a fraction of what the provincial government paid Nulane. Once paid to Nulane, the bulk of the cash was allegedly laundered and distributed through a scheme of transactions into and through different bank accounts and entities, among those, Gupta companies in SA and Dubai.
The Investigating Directorate (ID) of the NPA, in response to questions from Daily Maverick, said plans to split the trial are aimed at ensuring that the right to a speedy trial for the Guptas’ co-accused in the case is not compromised.
The United Arab Emirates recently announced that it had finally ratified an extradition treaty signed with South Africa several years ago.
But, while this paves the way for an application to extradite the Guptas — provided they are still in Dubai — such a process is likely to be drawn out, while also subject to the laws of that country.
The ID intends to apply for the separation of the trial in the coming weeks so the case against Sharma and the other accused can start as soon as possible.
“We don’t want the rights of the other accused to a speedy trial to be impacted by our attempts to extradite the four Gupta family members. That is the only reason that would lead to a separation of trials,” ID spokesperson Sindisiwe Seboka said in a written response to questions.
The existing charge sheet, although not final, lists Sharma, his companies and the Guptas among 17 different accused persons and entities.
Prosecutors do not always favour the separation of a criminal trial between groups of accused persons because it invariably involves the same witnesses and evidence being run twice.
And there is sometimes a possibility of evidence being viewed or evaluated differently by two separate courts. But it is not unusual and the Criminal Procedure Act makes provision for such applications.
In fact, as a result of delays caused by former Bosasa executive and corruption accused Angelo Agrizzi’s poor health, the NPA has raised the possibility of splitting his trial from that of former ANC MP, Vincent Smith.
Iqbal Sharma remains in custody after his arrest in Johannesburg on 2 June 2021 for fraud and money laundering. His brother-in-law, Dinesh Patel, and former Free State government officials Peter Thabethe, Limakatso Moorosi and Seipati Dhlamini are out on bail of R10,000 each after appearing in the Bloemfontein Magistrates’ Court recently.
Sharma, a former Transnet board member who is also caught up in further allegations involving the R54-billion transaction for 1,064 locomotives, was denied bail after the state argued that he was a flight risk and produced information relating to an alleged R264-million transfer to a company he owns in one of Dubai’s Free Trade Zones.
It was in fact Sharma who had raised concerns of a protracted trial in his unsuccessful bid for bail.
In an affidavit submitted at court, Sharma said it was likely that the Guptas, their associates or family members mentioned in the draft charge sheet were scattered across the globe. That, he argued, could trigger legal applications against the state in various jurisdictions around the world.
The Guptas, given the manner in which they have dealt with matters historically, would probably challenge arrest warrants and oppose any attempt to extradite them from wherever they may be, Sharma had said.
“This will result in a significant delay in my trial commencing. I cannot be expected to remain incarcerated whilst these skirmishes are ongoing which do not ultimately concern me.”
Senior state prosecutor advocate Peter Serunye, in response to Sharma’s bail application, told the court the state was ready to begin the prosecution.
“Finalisation of the case against the accused (including Sharma) does not depend on the extradition of other people mentioned in the indictment.
“The rest of the accused as they appear on the list are currently outside the borders of the country and we do not intend to waste the court’s time regarding extradition before the trial starts.
“The trial is going to start with or without them and if they were to be extradited before the trial starts, we will add them,” Serunye had said.
The Guptas are in self-imposed exile abroad, with several believed to have used Dubai as a home base since their hurried departure from South Africa several years ago.
Asked if there was reason to be concerned about the prosecution’s appetite to go after the Guptas due to anticipated legal wrangles over an extradition or Interpol red notices, the ID said the Nulane case is not just about the Guptas and that all those accused have a case to answer.
“The said Gupta family members are going to be prosecuted for the same offences, whether it is together with Sharma and others or separately. Their extradition is the determining factor (how soon we get them),” the ID said.
Asked if the Guptas, via their lawyers, have been in touch with the prosecution since the emergence of the indictment in the Free State case, the ID said: “We do not share confidential correspondence relating to private individuals with the media.”
Sharma, Patel, Thabethe, Moorosi and Dhlamini are scheduled to appear in court on 5 July 2021.
The Free State case is an important first strike by the NPA, as it is deemed to be the launch pad for the Estina dairy farm case.
In that matter, cash meant for poor black farmers in the Free State allegedly ended up with the Guptas — part of it being used to fund the infamous 2013 Sun City wedding of one of the Gupta children.
One defence lawyer told Daily Maverick that separating a trial does, by and large, create a carbon copy trial with witnesses and evidence usually being the same in both.
However, in some cases there may be specifics relevant to only one group or accused. But separating a trial could also be a tactical move by a prosecuting team that understands how hard some accused parties may be willing to fight the state at every turn, the lawyer said.
The Guptas have been the primary focus of nearly three years of public hearings into allegations of fraud and corruption in the public sector before Deputy Chief Justice Raymond Zondo.
The family, who migrated to SA from India in 1993, are financially well resourced and are known not to shy away from court action: Atul Gupta, from abroad, is suing the Department of Home Affairs in his bid for a new South African passport.
In addition, various Gupta companies — some through local proxies — have launched multiple and costly legal challenges against the business rescue practitioners involved in the running of eight of their companies. DM