By: Prof BB Senokoane
Out of curiosity, I have read the judgment of the Acting High Court Judge Nompumelelo Gusha who granted the section 174 discharge to Mbana Peter Thabethe and seven others. The case relate to the Estina Dairy Farm Project in the Free State, otherwise known as the Gupta Farm.
It was named the Gupta Farm because it was alleged that the Gupta brothers were the mastermind of corruption on the farm. The charges included allegations of fraud, corruption and money laundering.
Among the accused were prominent figures such as the former head of the Free State Department of Agriculture and Rural Development Peter Thabethe, former chief financial officer Seipati Dlamini, Islandsite former director Ronica Ragavan and Nulane Investments head Igbal Sharma.
Section 174 of the Criminal Procedure Act involves the right of an accused to be discharged from the offence they allegedly committed where, at the close of the State’s case, there is no evidence on which the court may draw the accused to the charge. The section also ensures that the accused’s fair trial right is fulfilled.
A point of interest was that the Gupta brothers, Atul and Rajesh, were charged in the same matter, but the State later withdrew the charges on the basis that they were not in the country and could not get extradition. Consequent to that, a Red Tape Notice by Interpol was issued against them.
There are two things I wish to argue. One is of the extension of a discharge (Section 174) on the Gupta brothers and the other is the removal of the Red Tape on them.
The extension of a discharge (Section 174) is argued based on a legal principle of a “Trial in absentia”. In State versus Whitley in the Arizona Court of appeals in 2004, the court held that: “A voluntary waiver of the right to be present requires true freedom of choice. A trial court may infer that a defendant’s absence from trial is voluntary and constitutes a waiver if a defendant had personal knowledge of the time of the proceeding, the right to be present, and had received a warning that the proceeding would take place in their absence of they had failed to appear.”
In this instance, the judge has a discretion to complete the trial and pass a sentence in absentia. If this is acceptable in law, why can’t it be the case that the Gupta brothers are discharged in absentia?
Absentia, in this sense, not only meaning absence in court but also absence on the charge sheet, court rolls or court judgment. It is, of course, common knowledge that the Gupta brothers suffered consequences, stigmatisation and Red Tape in absentia.
However, we must remind one another that there was a discharge later, but the Red Tape remained. In fact, the warrants and Red Tape notices of Gupta brothers is no longer justifiable and no longer necessary as they were hot spotted in absentia to suffer the consequences by association, yet they are not given the privilege to benefit from the discharge by association.
The purpose of the notices could no longer be achieved. In fact, the continued maintenance of arrest warrants and Red Tape Notices is an abuse, and the real purpose of the authorities is to pull a public show that would prevent the two from realising their Constitutional rights.
Ndiya buza nje?
Prof BB Senokoane is an associate professor, College of Human Sciences, Unisa. He writes in his personal capacity.