STATE CAPTURE / AGE OF ACCOUNTABILITY
‘We’ve got this,’ says NPA as 14 October deadline looms for Transnet indictment
The National Prosecuting Authority has thrown many eggs into one basket as it seeks to prosecute a long list of those allegedly responsible for criminality linked to transactions associated with Transnet’s 1,064 locomotives deal. Now it is under pressure to produce a compelling charge sheet for one of State Capture’s biggest cases — and it must do so by Friday.
On the back of a series of curiously staggered arrests, the National Prosecuting Authority (NPA) finally put McKinsey & Co in the dock late last month.
Although McKinsey has repaid state-owned companies Eskom and Transnet close to R2-billion in fees earned from dirty deals, the global consulting firm must now also answer to criminal charges, albeit ones that are still being fine-tuned.
If things go according to the NPA’s plan, McKinsey will stand trial alongside Regiments Capital, Trillian Capital Partners and owners Litha Nyhonyha, Niven Pillay and Eric Wood as well as former Transnet bigwigs including Brian Molefe, Anoj Singh and Siyabonga Gama.
Salim Essa and Ashok Narayan — both key figures in the Gupta enterprise — and former McKinsey director Vikas Sagar will probably have to be dragged over here through extradition unless they willingly travel to SA.
In the Gupta leg of State Capture, it doesn’t get bigger than this.
But for now, the NPA must put a compelling charge sheet before the Palm Ridge Specialised Commercial Crimes Court setting out the who, what, where and when in respect of each of the accused in the case.
And it must do so by no later than Friday, 14 October, else it risks having to fight off applications by some of the accused to have this matter, one of nine much-heralded seminal cases, placed on the court roll by the end of September 2022, struck from the roll before it even gets out of the starting blocks.
In a nutshell, the State intends to pursue a variety of charges — theft, fraud, corruption, money laundering and Public Finance Management Act violations — against different accused parties in this case.
Their alleged crimes relate to a 2012 transaction advisory contract that was first awarded to McKinsey, but which later saw Regiments Capital allegedly being irregularly on-boarded for the work.
The controversial contract was designed to advise Transnet on its purchase of 1,064 locomotives and help with cash-raising.
Other charges relate to payments that Transnet made to the Gupta-linked Trillian in 2015.
With much riding on this case — not least of which is the R1-billion restraint order in place against Regiments Capital and its owners — it is vital that the NPA gets this one right from the get-go.
Already the case has brought together some heavy legal artillery in one single courtroom: The accused effectively boast a legal team with more than 200 years of experience in total.
Several of them — Piet du Plessis and senior advocates Danie Dörfling, Estelle Kilian and Barry Roux — are former State prosecutors or State advocates.
The NPA has opted to keep the Transnet case internal and confirmed that advocates Geoff Budlender, Matthew Chaskalson and Karla Saller — all of whom are considered experts in the Transnet/Regiments/Trillian stream of State Capture-related matters — are not involved in the prosecution of this case.
Budlender conducted the 2017 investigation into allegations of State Capture against Trillian Capital Partners and its then off-grid partnership with McKinsey.
More recently, he worked with Saller on the Investigating Directorate’s successful application to restrain more than R1-billion of Regiments assets in terms of the Prevention of Organised Crime Act (Poca), a case that hinges on the successful prosecution of the company and/or its owners, Pillay, Nyhonyha and Wood.
Chaskalson, on the other hand, is considered the expert in State Capture money flows, including those stemming from various Transnet transactions that are linked to the Gupta purchase of Optimum Coal Mine.
The NPA, citing security concerns, declined to answer questions about the prosecuting team assigned to the Transnet case even though several have appeared in open court.
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Daily Maverick understands that the initial lead prosecutor, advocate Mpho Doubada, died this year and has since been replaced by advocate Justice Bakamela, the prosecutor who ran the aborted 2018 Estina prosecution.
Advocate Lourain Kgaditsi handled initial appearances in the case — including the bail application of Kuben Moodley — while her colleague Peter Masiakwala was in court managing Wood’s recent application for relaxed bail conditions.
Asked whether, in view of the legal might of the defence, the NPA was satisfied that it had sufficient capacity in this case, it said: “The NPA has full trust and faith in its team. Should a need arise to procure the services of outside counsel, same will be done.”
Asked specifically if the services of Chaskalson, Budlender or Saller were not required for the case, it said: “The NPA has not said that it does not require their services. They will be engaged when the need arises.”
The NPA can apply to the minister of justice to sign up private counsel to help with the prosecution of some of its cases but has opted not to do so for this case, at least not yet.
It confirmed that it had Section 38 appointments on the Nulane and freshly enrolled Estina cases as well as the related Gupta extradition matter.
And the game plan?
The NPA maintains that the staggered wave of arrests in the Transnet case is in line with its prosecutorial strategy, adding that it was done to ensure there was sufficient evidence before new suspects were added.
It would not say whether it had initiated extradition processes in respect of either Essa or Narayan but did confirm that it would have to seek Interpol Red Notices to locate “some” accused.
Apart from Essa, Narayan and McKinsey’s Sagar, there are currently 12 accused before the court, although it is unclear whether more will be added.
The NPA had seemingly hinted that ultimately there would be a total of 35 individuals and entities charged in this case and that it would make the final charge sheet available once everyone was in the dock.
This is according to veteran defence lawyer Piet du Plessis of BDK Attorneys who is acting for Kuben Moodley and his company, Albatime.
Moodley was arrested in September 2021 and Du Plessis has flagged various concerns about perceived delays in his case.
Du Plessis recently read a letter into the court record which referred to a previous undertaking by prosecutor Kgaditsi about the planned addition of further accused — first scheduled for February 2022 and later, May 2022.
Nothing happened in February and in May only five others — Wood, Gama, Phetolo Ramosebudi, Garry Pita and Daniel Roy — were added.
The next group, Nyhonyha, Pillay, Molefe and Singh were added in August, while McKinsey and its representative, Goitseone Mangope, and Sagar (in his personal capacity) were added as accused parties at the end of September 2022.
Given the PR nightmare, McKinsey is not likely to tolerate much of a stop-start court case, so it can be expected to be firm with the prosecution early on.
Several other accused have put the State on terms to produce the indictment and the content of the docket before their court appearance on Friday.
Daily Maverick understands that a failure to do so could lead to applications for the provisional withdrawal of the matter or that the case be struck from the court roll.
Ideally, the NPA will have a humdinger of a charge sheet ready so it can get this show on the road as it would not want a repeat of the 2018 episode when its attempt to prosecute the Estina case fell flat with the dropping of charges against various members of the Gupta family and their business associates. (It has since reinstated prosecutions in this case). DM