In the first State Capture trial, acting Judge Nompumelelo Gusha ruled in the Bloemfontein High Court on Thursday that some key documents that were provisionally placed on record by the State are inadmissible.  

The State alleges that the Free State Department of Agriculture and Rural Development fraudulently awarded a contract worth R24.9-million to Nulane Investments — a Gupta-linked company — without following procurement procedures, and instead wrote a deviation memorandum that cited Nulane Investments as the sole service provider.

It further alleges that the company did not have the capacity to deliver the service (the carrying out of a feasibility study) and subcontracted Deloitte to do the feasibility study for R1.5-million. The feasibility study led to the controversial Vrede Dairy Project that cost the provincial department R280-million.

The State had argued that a number of key documents on which its case was built, provisionally be placed on record on condition that the State would be able to provide evidence to authenticate them. 

But in her ruling on Thursday, Judge Gusha said documents in dispute by the defence that were provisionally admitted into the record, remained copies even after the State closed its case.

The State closed its case on Wednesday, abandoning its initial plans to call witnesses in a trial within a trial in an effort to allow evidence and testimony on the #GuptaLeaks.

“All the evidence they [the State] sought to rely on to prove the authenticity [of the documents] came to nought,” Judge Gusha said. She stated that none of the witnesses who testified was present when the documents were signed and the State did not bring any handwriting expert evidence to authenticate the signatures.

In the main, documents that were confiscated during a search and seizure operation at the provincial department’s headquarters were in dispute and the State had argued that the court was allowed to admit copies of documents into the record, where the originals were missing or could not be found. 

Judge Gusha said when the authenticity of documents was disputed, such as in this case, “The State’s case, unfortunately, suffers the same misfortune and does not pass muster.”

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The judge said the State’s case was that the originals of the disputed documents were either lost during the provincial department’s relocation to Glen College of Agriculture or that despite a diligent search they could not be located.

But, having carefully considered the evidence tendered, she was not satisfied that they were lost or that a diligent search had been conducted.

Some of the documents that were ruled inadmissible were the contracts between the provincial department and Nulane Investments, an accused in the case. The deviation memorandum was, however, admitted into evidence.

A copy of the Deloitte report — that was allegedly altered to double the net profit, capital expenditure, number of people to be employed, and to include the India-based Paras Dairy as the preferred implementing agent for establishing a milk processing plant in Vrede — was also ruled inadmissible.

Immediately after her ruling, seven of the eight accused, who are facing charges including fraud, corruption and money laundering, indicated they would file heads of arguments for a discharge.

Two of the accused, Peter Thabethe and Limakatso Moorosi, are former heads of the Free State Department of Agriculture and Rural Development.   Moorosi’s lawyer, Zimbini Nyezi, said he was not going to apply for a discharge, but instead for closing the case against his client.

The other accused are Seipati Dhlamini, the former chief financial officer of the provincial department; Ronica Ragavan; a second company, Islandsite Investment One Hundred And Eighty; Dinesh Patel; and Iqbal Sharma (director of Nulane Investments).

All eight have pleaded not guilty.

Lawyers for the defence are expected to submit their heads of argument by Friday, 3 March. DM