Bloemfontein - Oakbay Investments (Pty) Ltd acting chief executive officer Ronica Ragavan believes the latest attempt by the National Director of Prosecutions (NDPP) to have assets worth about R180 million is ill-advised and tantamount to abuse of power.
In an affidavit submitted to the Free State High Court ahead of another court battle on Thursday morning not to have assets belonging to several companies belonging to the controversial Gupta family preserved, Ragavan says the NDPP could be having some clandestine motive as its case is without substance.
The applicants in the latest court episode are Oakbay Investments, Aerohaven (Pty) Ltd, Westdawn Investments (Pty) Ltd, and Annex Distribution (Pty) Ltd which are represented by Ragavan. She is also representing Ashu Chawla and Varun Gupta.
The applicants are facing charges relating to the Vrede Project where millions of rands meant to benefit emerging black farmers were allegedly misappropriated.
Ragavan said the applicants will demonstrate that the NDPP's case for a restraint order is deficient as it is based on hearsay and contains misleading allegations.
"Had the NDPP bothered to ask the applicants or to perform any objective and unbiased investigation, it would have had the benefit of these explanations for the flow of funds before it felt compelled to arrest the applicants and bring this restraint application," argues Ragavan in the court papers.
She adds that the alleged flow of funds is not proven and cannot be sustained in court.
"In the circumstances, the conclusion is irresistible that ulterior motive underpins this restraint application, that it is without merit and that it constitutes an abuse of process,” she added.
The applicants want the court to set aside a provisional restraint order which it granted on April 11.
The restraint application is the second attempt by the NDPP to gain control of the assets of the applicants on grounds that the applicants were allegedly complicit in suspected unlawful activities involving the Vrede Project.
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The first attempt by the NDPP was by way of a preservation order issued by the same court on January 18 under a section of the Prevention of Organised Crime Act (POCA). But on March 9 the court amended the January order in a number of material respects and discharged various parties including Oakbay, Westdawn and Annex from the order.
In the case of Aerohaven, the court reduced the nearly R21.3 million which had initially been preserved to R73 277. The Bank of Baroda's Nedbank account was also discharged from the matter.
In total, the original amount of R220 202 652 which had been earmarked for preservation by the NDPP was reduced R40 360 154.98 by the court.
In a detailed synopsis of the case, the applicants are arguing that the NDPP failed to prove that the funds it sought to have preserved were proceeds of unlawful activities, yet that's the test for a preservation order under Section 38 of POCA.
“It appears the only reason that the NDPP was successful in obtaining the preservation order in the first place was because its application was shielded from scrutiny and challenge because it was brought on an urgent basis,” says Ragavan on behalf of the companies.
The applicants criticise the affidavits submitted by the state which were done by Motlalekhotso Knorx Molelle, Sampson John Schalkwyk and Nkosiphendule Mradla saying they are devoid of substance to justify the preservation order.
Ragavan was charged together with Oakbay, Chawla, Varun and Aerohaven on February 18 before the Bloemfontein Magistrate's Court but argues that their part in the alleged offences remains unclear.
She says while the charge sheet presented by the NDPP has a total of 12 main counts, Oakbay, Chawla, Varun, Aerohaven and herself are only charged with three counts which relate to fraud alternatively theft, contravention of Section 214(1)(c) of the Companies Act and money laundering under POCA.
“We are alleged to have acted in the furtherance of a common purpose with Estina (Pty) Ltd, Kamal Vasram and Nazeem Howa in the commission of these offences.
While the charge sheet provides details regarding the roles played by various of the accused in the procurement of the contract between the Free State Department of Agriculture and Estina in respect of the Vrede Project, the other applicants and I are not described as playing any role in that,” she contested.