The National Prosecuting Authority’s (NPA) Investigating Directorate (ID) on Monday, filed an application for leave to appeal against acting Judge Nompumelelo Gusha’s ruling in the first State Capture criminal trial. 

The NPA’s ID confirmed it had lodged its application for leave to appeal on 8 May, in a statement on Tuesday morning. The statement lists the grounds for the appeal application against judgment in the R24.9-million Nulane Investments case, in which the NPA’s ID asserts acting Judge Gusha made a number of errors. 

Investigating Directorate files leave to appeal in Nulane matter pic.twitter.com/kJecU2fP5J

— NPASouthAfrica (@NPA_Prosecutes) May 9, 2023

The NPA’s ID had announced last Thursday that it would file an application for leave to appeal after its case against the eight accused in the R24.9-million Nulane Investments matter flatlined in the high court in Bloemfontein.

In handing down her damning ruling on 21 April, acting Judge Gusha had lambasted the State for its shoddy investigation. 

Read in Daily Maverick: Judge slams State’s ‘stillborn, audacious’ case as all 8 Nulane corruption accused discharged

The application is for a leave to appeal acting Judge Gusha’s judgment on 21 April, that granted seven accused discharge in terms of Section 174 of the Criminal Procedure Act 51 of 1977. It is also for a leave to appeal acting Judge Gusha’s ruling to acquit former head of the Free State Department of Agriculture and Rural Development, Limakatso Moorosi (accused 2). 

Moorosi was the only one who did not submit an application for discharge at the close of the State’s case. However, in her verdict, acting Judge Gusha, also found her not guilty, and she was acquitted. 

In the statement, the NPA’s ID said the appeal application is founded on the basis that acting Judge Gusha erred in granting discharge to the seven accused “in circumstances where the State had presented prima facie evidence upon which a reasonable court might convict”.

“There are reasonable prospects that another Court would come to a different conclusion and or find that granting the discharge was a misdirection which was contrary to legal precedent, constituted a gross irregularity in the trial and was prejudicial to the State,” read the statement.

Gupta family associates (from left) Iqbal Sharma, Peter Thabethe, Limakatso Moorosi, and Sepati Dlamini appear in the Bloemfontein High Court on September 08, 2022 in Bloemfontein, South Africa. (Photo: Gallo Images/Volksblad/Mlungusi Louw)

The State asserts that acting Judge Gusha “erred by deviating so drastically from the parameters of the test for a discharge” that it was a “miscarriage of justice”. 

The State further maintains that acting Judge Gusha “erred by concluding in her judgment that the State failed to pass even the barest of threshold, and that an application for discharge cannot be refused in the hope that the accused persons will incriminate themselves when they give evidence, thereby closing material defects in the State’s case.” 

Additionally, the NPA Investigating Directorate’s appeal is also against acting Judge Gusha’s ruling on 23 February, which rendered documents crucial to the State’s first State Capture trial as inadmissible evidence. 

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, Daily Maverick’s Cathy Dlodlo reported. But in her ruling on 23 February, acting Judge Gusha said that some key documents that were provisionally admitted into the record, had remained copies even after the State closed its case. 

The NPA is now arguing that acting Judge Gusha’s ruling on the admissibility or not of the documentary evidence was “contradictory”, and was prejudicial to the State’s case. 

According to the NPA ID’s statement, if successful the appeal application can either be heard by a full bench of the high court in Bloemfontein or the Supreme Court of Appeal. DM