SCORPIO: LEST WE FORGET
Everyone but the Guptas feels the heat as SA ups the ante on State Capture prosecutions
South Africa has upped the ante on State Capture prosecutions. Gupta fingerprints are all over the proverbial State Capture crime scene. But for now, it is their henchmen, enablers and former business partners taking the rap.
While authorities ponder extradition options to smoke the Guptas out of their international hideout, the controversial brothers and Salim Essa – the unofficial fourth brother – remain conspicuous in their absence, in a range of high-profile court cases playing out in South Africa.
Unchallenged testimony before the State Capture commission put the cost of the Gupta enterprise to the country in excess of R57-billion. Evidence heard put them at the centre of State Capture-driven corruption that engulfed the country during the Jacob Zuma presidency.
They allegedly did this by influencing ministerial appointments, that of boards of state-owned companies, or bullying and/or trying to bribe senior public officials to bend the rules, so as to steer lucrative government business their way.
Judge Raymond Zondo dubbed theirs a racketeering enterprise in Part 2 of the State Capture report released earlier this year.
Series of deals
Beyond the costly effects of that, the Gupta name is synonymous with a series of alleged unlawful deals and ongoing controversy surrounding the Estina dairy farm scandal, Transnet’s 1,064 locomotives deal, the family’s purchase of Optimum Coal Mine and Shiva Uranium, as well as transactions involving the Transnet Second Defined Benefit Fund (TSDBF), among others.
That their fingerprints are all over the proverbial crime scene is indisputable. But while Ajay, Atul and Rajesh Gupta (and Essa) face a laundry list of damning allegations relating to those deals, there has been just one formal indictment featuring the Gupta name.
The National Prosecuting Authority’s (NPA’s) Investigating Directorate produced a charge sheet in a Free State case with Atul and Rajesh Gupta and their wives as accused. But then, for strategic reasons, split the Guptas from the case to ensure that former associate Iqbal Sharma and the other accused had a shot at a speedy trial.
Neither do the Guptas feature as respondents or defendants in the NPA’s ongoing fight with Regiments Capital, Eskom’s drawn-out mission to get Trillian Capital Partners to repay R595-million.
Transnet and the Special Investigating Unit, while making important strides across the State Capture mess, is only just at phase one of undoing the R54-billion 1,064 locomotive stink with an application to review and set aside the contracts with various suppliers, including the Chinese rail giant Chinese Railway Rolling Stock Corporation (CRRC).
Two Chinese rail entities that now make up CRRC are accused of having concluded kickback agreements with Gupta-linked companies.
But regardless of the incredible world-class work that’s being put into cases like the NPA’s bid for the preservation of the Gupta-owned Optimum Coal Mine, South Africa needs a Gupta in the dock.
Facing the music
For now it is the Gupta henchmen, enablers and former business associates who are facing the music – and if not yet, they are certainly sweating amid the NPA’s pledge of delivering a number of “seminal prosecutions” in the coming months.
Although they are central features of various high-profile cases, the Guptas are not cited as respondents or defendants in most of them, as yet.
On Friday, 27 May, it was former Transnet bosses Siyabonga Gama, Garry Pita and Phetolo Ramosebudi who joined alleged Gupta fixer Kuben Moodley in the dock alongside Eric Wood and Daniel Roy of the Trillian group.
At issue in that case is a R93-million payment that Trillian received from Transnet in 2015 for work the parastatal had already paid Regiments Capital for. Yet, strikingly absent from the first appearance on Friday was Essa, who was the majority shareholder of Trillian until mid-2017.
Some 48 hours before this group’s appearance – on 25 May – Gupta Inc’s Ronica Ragavan cut a lonely figure when she appeared in the Randburg Magistrates’ Court.
Once considered to be one of the most powerful women in the Gupta enterprise, Ragavan appeared as accused number one in a R1.75-billion criminal case flowing from the enterprise’s alleged abuse of the rehabilitation trust funds from Optimum and Koornfontein coal mines.
Optimum remains the Gupta family’s most valuable asset in South Africa, and few will dispute that whatever Gupta-style accounting Ragavan or her colleagues got up to with those rehab funds, it was likely in service – if not at the instruction – of their paymasters.
At the time of her appearance and release on bail of R20,000, Ragavan was already out on R10,000 bail – for fraud and money laundering charges in both her personal capacity and as director of the Gupta-owned Islandsite Investments 180. The second case relates to a R24.9-million criminal case involving the Free State government.
In the second case, commonly referred to as the Nulane matter, Ragavan is accused number eight, alongside former Gupta business associate Sharma, his brother in-law, Dinesh Patel, and three former Free State government officials.
Ragavan was arrested after submitting an astonishing affidavit that effectively sought to shield her boss, Atul Gupta, from prosecution, as she claimed responsibility for the transactions that are central to the State’s criminal case.
Time will tell whether Ragavan becomes the face of South Africa’s (SA) Gupta prosecution.
Interpol Red Notices
The country secured Interpol Red Notices for Atul and Rajesh Gupta in March 2022 for their alleged involvement in the Nulane case. So far, there is no indication that SA is challenging Interpol on its decision not to issue Red Notices against their wives, Chetali and Arti, or not to publish the “Wanted” status of Atul and Rajesh on its website.
To what extent SA can honestly bank on Interpol to find the Guptas also appears to be an entirely different debate.
Daily Maverick recently illustrated the significant gaps in SA’s efforts to find the Guptas when it revealed that there really is no central command, with various critical departments all placing the responsibility at the door of the Department of Justice and NPA.
A State Capture legal expert told Daily Maverick that is simply not good enough. Given the seminal nature of the case against the Guptas and the damage caused, South Africans deserve to know what else is being done to find them, to seek their extradition and to put them on trial.
“If we can’t get the Guptas in the dock then SA needs full disclosure on why not.”
Government owes the public full accountability about efforts to ensure the Guptas are brought to book, due to the huge amount of resources that continue to be expended on this, the expert said.
Authorities must be made to disclose, in precise detail – and regularly – what is being done to find the Guptas, and who the various officials are that are tasked with this mission of national importance. Vague excuses cannot suffice for a task of this nature.
If the plan or efforts are coming to naught, South Africans should be told why that is and what the next steps are. There is simply no more seminal a criminal prosecution than that of the Guptas.
Best skills on the job?
Hence, it’s not unreasonable to ask, for instance, who are the senior officials the NPA has in charge of the Gupta extradition application? Given the iconic status of the Gupta matter locally and abroad, are local authorities pursuing it as a ground-breaking, pioneering prosecution? Does SA have the best skills combination of prosecutors, international law and extradition experts on this case?
Back in 2019, when the NPA launched its massively important first strike at Regiments Capital, Daily Maverick hinted that it would come up against the very deep pockets of the company’s owners, Niven Pillay and Lihya Nyhonyha.
It’s close on three years since the NPA began that fight and it is still not done, Regiments now heading to the Supreme Court of Appeal after the NPA recently secured a final restraint order for more than R1-billion.
South Africa has one shot at extraditing the Guptas. Much rests on that application because the crafty Guptas can be expected to litigate their guts out in foreign courts. (How they pay for this, while under international sanctions, would make for fascinating reading).
Vital considerations include the exact case the State hopes to take to court. The Guptas can’t be brought home on lesser charges in the hope that the final case against them can be fine-turned once they land at OR Tambo International.
Similarly, extreme care has to be taken to ensure SA does not end up relying on charges that may long have prescribed under UAE law.
This extradition application simply has to be the definitive case against the Guptas, one that says: “Here it is. State Capture’s ultimate, seminal case.”
But the longer it takes for SA to get cracking on an extradition application, the worse it bodes for the country’s hopes of ever putting a Gupta in the dock.
So, while South Africans are rightfully optimistic about recent arrests, civil society must continue sustained public and international pressure to ensure that the alleged masterminds of State Capture are brought to book. DM
A direct strike at the Guptas
Investigations into matters that involve the Guptas are ongoing at the NPA, the Hawks, the Special Investigating Unit (SIU), Transnet and Eskom, among others. Two cases that definitively involve the Guptas as respondents or defendants are:
- Eskom vs the Guptas and others: Launched in 2020, the Gupta brothers and Salim Essa are cited as defendants in an R3.8-billion civil claim brought by Eskom and the SIU.
Some of the others are former Cabinet Minister Mosebenzi Zwane, executives and Board members including Brian Molefe, Anoj Singh and Matshela Koko.
In summary, Eskom seeks to recover the amount in losses suffered due to payments to the Gupta-owned Optimum Coal and Tegeta Exploration and Resources, as well as Trillian Management Consulting. The Guptas and Essa are defending this claim.
- IDC vs Oakbay, Shiva: The Industrial Development Corporation (IDC) dished out a R250-million loan to Gupta-owned Oakbay for the purchase of Shiva Uranium in 2010. The IDC sued for repayment in 2017. While the case drags on, it did secure records of Gupta-linked accounts from 17 New York banks in 2020. Oakbay is one of the few Gupta-owned companies not in business rescue and therefore, the Guptas or their proxies are directly involved in trying to fight this case.
For the most part though, civil litigation and to a lesser extent, criminal litigation, continue in their absence. DM