“This is an embarrassment for the prosecuting authority and, by implication, the South African Police Service.”
This is how expert and University of Pretoria's senior law lecturer Dr Llewelyn Curlewis summarised the performance of the National Prosecuting Authority (NPA) and police investigators in the first state capture case to go to trial.
It ended in disappointment when an application for discharge was granted to seven of the accused in the Bloemfontein High Court on Friday.
The R24.9m Nulane Investments fraud and money laundering case collapsed as most of the documents presented were rejected by the court as they were not originals and the state had failed to authenticate the evidence.
Curlewis was reacting to a damning judgment by acting judge Nompumelelo Gusha who described the police investigation as “lackadaisical” and a “comedy of errors”.
Those who were discharged include Gupta associate Iqbal Sharma, Peter Thabethe, former head of the Free State department of rural development, Seipati Dhlamini, former provincial agriculture CFO, Dinesh Patel, Sharma’s brother-in-law and Islandsite director Ronica Ragavan.
Nulane Investments and Islandsite, indicted as entities, were also found not guilty and discharged in terms of section 174 of the Criminal Procedure Act.
The state destroyed the state's case even before the defence case was placed before the court for consideration
— Dr Llewelyn Curlewis, senior law lecturer ,University of Pretoria
The eighth accused, former head of the Free State department of agriculture & rural development, Limakatso Moorosi, did not apply for a discharge but was also acquitted.
“The court came to the conclusion that the investigation boiled down to a comedy of errors. Those were the words used by the judge. That in itself suggests the quality of the work that was done before the matter was placed before the court,” Curlewis said.
“The state destroyed the state's case even before the defence case was placed before the court for consideration.”
Curlewis said what was disturbing was that the matter was also being used to extradite the Gupta brothers, Rajesh and Atul.
“With all due respect, I cannot suggest that South Africa would have, in any event, been successful with the extradition,” he said.
The United Arab Emirates has refused the extradition request but South Africa might appeal.
The NPA said on Friday that it was weighing its options on the Nulane matter.
“We will be reflecting on the judgment with a view to determining legal avenues to explore. The outcome of this case has no bearing on our ability to prosecute other state capture cases,” said Investigating Directorate head advocate Andrea Johnson.
“We remain resolute in our commitment and ability to vigorously prosecute those responsible for state capture and corruption.”
In her 39-page judgment, acting judge Gusha said the state failed to authenticate, not even through a single witness, the disputed documents which she had provisionally admitted as evidence.
“What the court instead heard was the ineptitude of the investigators and the lackadaisical manner in which evidence and disputed documents was handled, a government department seemingly evinced a wilful disregard to the manner in which official documents were to be kept and archived,” stated Gusha.
She said “the state failed to pass even the barest of threshold, prima facie proof. An application for discharge cannot be refused in the hope that the accused person will incriminate himself when he gives evidence, thereby closing material defects in the state's case”.
The acting judge also tore into the state's key witness, Shadrack Cezula, a section 204 indemnity witness.
She accused Cezula of being an evasive witness who “at best” admitted to contravening the Public Finance Management Act (PFMA), though he had been offered indemnity from fraud.
Acting judge Gusha said Cezula “sought to downplay his role as an employee who had no choice but to comply with an instruction from a superior, and at worst misconduct in not complying with the PFMA”.
“I found Mr Cezula to be an evasive witness, especially on the reason he found himself in court. He was hell-bent on distancing himself from committing the offence of fraud,” acting judge Gusha found.
Stefanie Fick, executive director of the accountability division at Organisation Undoing Tax Abuse, said the judgment was a huge disappointment since the country was desperate to see some accountability in relation to state capture.
“We hoped finally someone was going to be held accountable after the sheer mess that was left behind after state capture and corruption... you start worrying about the rest of the state capture cases,” Fick said.
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