The Asset Forfeiture Unit (AFU) is looking to recover an astonishing R50 billion allegedly looted from state-owned entities in dodgy "state capture" dealings.
This emerged on Tuesday as law enforcement agencies were involved in engagements with companies, Trillian and McKinsey, over an order to freeze their assets worth R1.6 billion related to their alleged "unlawful" consultancy contract with Eskom.
The two companies were reportedly willing to pay the R1.6bn, leading to a halt to the enforcement of the order.
NPA spokesperson Luvuyo Mfaku said the engagements were ongoing with Trillian and McKinsey.
“However this does not mean that if they decide to pay the money then there will be no prosecution. Here we are only dealing with the asset forfeiture, the prosecution process can run parallel to that.”
Mfaku said he had no knowledge of any pending arrest against the Gupta brothers or their associates.
The Acting Head of the AFU, Advocate Knorx Molelle, said the preservation order against Trillian and McKinsey was the first of an onslaught of court orders to come as investigations mount against those implicated in the Public Protector’s report.
Molelle said the AFU was looking into 17 matters but six of these have been given priority now and the matters were before the court awaiting preservation orders.
“Hopefully we will receive the granted court orders over the next couple of weeks,” Molelle said in an interview on eNCA yesterday.
Molelle said he foresaw a substantial amount of money recovered by the end of the next financial year.
Speaking outside the Pretoria High Court yesterday, acting head of the NPA’s Specialised Commercial Crime Unit (SCCU) Malini Govender said they had been working with the evidence since late last year with a team of more than 20 people from the NPA, SCCU, National Treasury, AFU and others.
She said there were eight legs to the NPA’s investigation - seven from former Public Protector Thuli Madonsela's State of Capture report and one related to Estina, another Gupta-linked company in the Free State.
McKinsey’s global spokesperson, UK-based Steve John, told Independent Media that they were only made aware of the court order via the media on Monday.
But John said McKinsey would welcome all efforts to help them repay the fee as they had been “trying to return it since October because Eskom did not follow the appropriate procurement processes”.
The R1.6bn amount is the same amount of money Eskom demanded that the companies pay back last year.
Eskom issued a letter of demand to the two firms last October for the repayment of the funds for an unlawful consultancy contract.
Eskom stated that McKinsey received two unlawful payments totalling R1.028 billion and Trillian, "with the consent of both McKinsey and Trillian" received four payments totalling R564.6m.
These were raised as suspicious, based on information in the State of Capture report and subsequent Guptaleaks emails which pointed to alleged relationships between Eskom senior officials and the Gupta family.
John said the R1.028bn has been sitting in a ring-fenced account and was ready to be paid.
“We are returning this money not because we have done anything wrong but because Eskom has told us they did not follow the appropriate process,” John said.
He said they would cooperate with investigations and denied that McKinsey ever served the Gupta family nor any companies publicly linked to the Gupta family.
He also denied that McKinsey provided authorisation for Eskom to pay Trillian.
“Trillian failed our due diligence and we terminated discussions with them about a supplier development partnership in March 2016,” John said.
Molelle said Trillian also showed willingness to cooperate and pay back the money.
Both Molelle and Govender said it was still early days for arrests to be made.
“When we make arrests and take it to court we want to ensure that those people have very little defence,” Govender said.
She added that the team were “greatly perturbed” by allegations that NPA head Shaun Abrahams had attempted to stop the investigation.
“He has been nothing but helpful and would often check if we have enough resources,” Govender said.
Political analyst, Somadoda Fikeni said the latest move by the AFU and SCCU signals that law enforcement agencies are reading the political mood in the country to be more conducive to the prosecution of those behind state capture.
“It (non-action) was beginning to put pressure on the agency itself,” he said. While some have read the action as the beginning of an end for the Gupta empire, Fikeni said so far the investigations have not dealt with the Guptas directly.
Fikeni said the moves were unlikely to improve the image of the embattled Abrahams.
Legal expert Paul Hoffman explained that even though McKinsey said they were ready to pay back the money, they could still face criminal charges if the initial deal proved to be corrupt and fraudulent.
Hoffman said the AFU exercised special legislation that empowered it to receive an anti-dissipation order which freezes assets based on a prima-facie case.
“If McKinsey pays then that is the end of the order, however this does not mean they are excused from criminal liability,” he said.