The NPA said this after Free State High Court Judge Phillip Jacobus Loubser released assets worth about R250m put under provisional preservation on April 11, saying the State had failed to prove it had solid grounds to suspect illicit flow of funds by the applicants.
The matter was discharged with costs.
NPA spokesperson Luvuyo Mfaku said the State remained confident that it will successfully prosecute the applicants, who are the accused in a matter before the Bloemfontein Magistrate’s Court.
“This is not a reflection of our criminal case,” Mfaku insisted.
“This was purely based on what is outlined in the charge sheet. But the court grappled with issues about the flow of money. The issues of co-mingling that jurisprudence is not yet developed here. It’s developed in America and others. We are still developing here. We have a responsibility to develop jurisprudence in this country,” he said.
Mfaku said the NPA was not fazed by the outcome of the challenge to the provisional preservation order as it believed it had sufficient evidence to prove the illicit flow of funds.
“When it comes to the criminal case we are on track. They are not acquitted. They will still appear in the criminal court. We have got evidence that we believe our chances of success are very reasonable.
“Look, when you take a matter to court, you expect to be challenged, and this one was no different. What you must recall is that we still have a preservation order that is standing for assets worth about R140m. We will be filing forfeiture applications soon,” Mfaku explained.
Meanwhile, the elated Gupta family believed that the judge’s ruling was the beginning of their vindication in the state capture investigations, said lawyer Peter van der Merwe, who represented the Gupta-linked Westdawn Investments and Annex Distribution in the matter.
“The family take some positives from this. They feel that they will also be vindicated in the criminal trial and possibly in the state capture (inquiry).
“I really think the NDPP (National Director of Public Prosecutions) and the NPA need to revisit their position. They misinterpreted their own papers and their bank statements,” Van der Merwe,” said.
He said his clients’ assets were not physically removed, although the State had imposed certain restrictions, such as not allowing them to be sold or transferred to a third party.
Political analyst Somadoda Fikeni said the ruling should be praised but should not be seen as having negative ramifications for the pending state capture inquiry.
“In fact it might strengthen the perception that our law, irrespective of who is in power, will try to exercise fairness without prejudice. Even the Gupta family, who in the media are seen in such negative terms, the legal people will look at the technicalities as to whether their assets could be frozen.
“Anything found in the state capture inquiry could be subject to a judicial review, meaning that the quality of evidence the State presents there should be of good quality, as they wouldn’t want it to collapse once it goes to the courts,” Fikeni said.
He added the State should not be too naive to think it could recover more than 20% of the money looted in state capture, as most of it had been used for services.
The application was brought by Oakbay Investments (Pty) Ltd, Aerohaven (Pty) Ltd, Ashu Chawla, Oakbay acting chief executive Ronica Ragavan and former director Varun Gupta, Westdawn Investments (Pty) Ltd and Annex Distribution (Pty) Ltd.
It is the State’s case that the money paid to Estina (Pty) Ltd by the Free State Department of Agriculture to run a dairy project at Vrede in the Free State was deposited into a pool account held at the Bank of Baroda before being transferred into the accounts of the Gupta-linked companies.
The individuals have been implicated because they were directors in the companies and are, therefore, expected to have known what was happening in the company accounts.
The applicants were charged together with several others in Bloemfontein on February 18 following raids by the Hawks in Bloemfontein and Johannesburg.
The applicants are facing criminal charges relating to the Vrede Integrated Dairy Project, where millions of rand meant to benefit emerging black farmers in the Free State was allegedly misappropriated. The criminal case is expected to resume on August 17 in the magistrate’s court.
In his ruling, Judge Loubser said the State’s case was not impressive. He said he couldn’t see how the State could successfully pursue the preservation order.