THE REAL PROBLEM WITH THE NPA
Afew hours before president Jacob Zuma unceremoniously resigned from office, the Hawks descended on the Gupta family’s Saxonwold compound. It was all over the news. In view of dozens of cameras, the Hawks arrested the Gupta brothers’ nephew Varun Gupta and associate Ashu Chawla in connection with the Estina dairy project scam. The pair would later join Oakbay CEO Ronica Ragavan, former Gupta lieutenant Nazeem Howa and Free State government officials in the dock.
Those arrests followed a successful application by the Asset Forfeiture Unit (AFU) of the National Prosecuting Authority (NPA) for the freezing of R220m, which was described as the “proceeds of crime” linked to Estina.
Was this a new dawn? Had the NPA, long derided as Zuma’s half-blind bulldog, suddenly grown teeth?
Scandal-numbed South Africans, who’d watched the NPA’S disastrous bid to prosecute Zuma’s nemesis Pravin Gordhan on a baseless case, may have felt a glimmer of hope that the Gupta investigations heralded a new era for the prosecution service. Perhaps the Gupta case could restore the NPA to its halcyon days, when the Scorpions ruthlessly ensured accountability.
Within weeks, though, the cracks in that narrative began to show. First, a few weeks ago, Bloemfontein high court judge Fouche Jordaan reversed his order authorising the preservation of R180m in Gupta assets. Jordaan’s decision was based on an affidavit from the Bank of Baroda challenging the NPA’S argument that bank statements proved Atul Gupta and other Gupta companies had received money from Estina.
Essentially, the bank argued that the AFU had confused the transactions of its Nedbank pool account — which served 750 clients, including the Guptas and Estina — with transactions that directly involved the Estina account. In legal terms, it seemed to be a rookie error. The Guptas’ advocate, Mike Hellens, argued that the state had demonstrated “reckless incompetence” in its framing of these transactions, slamming the case as a “national embarrassment”.
Undeterred, the NPA then brought a second application to freeze R250m in Gupta assets.
But the NPA bungled it again. This time, when it applied for the freezing order before judge Phillip Loubser, the NPA did not include the Jordaan ruling or the Bank of Baroda affidavit in its documents. Nor did it include the dairy project’s bank statements.
On Monday, Loubser suggested he may very well not have granted the order freezing the R250m if he’d had access to those documents.
In a decision that the NPA has described as “a serious blow to the fight against organised crime”, Loubser reversed his order.
This week’s ruling has left the NPA — whose continued leadership by Shaun Abrahams remains the subject of a long-awaited constitutional court ruling — bloodied and reeling.
Most alarmingly, it now seems clear that the state’s bid to go after the Guptas, straight after the resignation of their friend Zuma, wasn’t driven by a meticulous case but rather by a desire to please a new master.
Until such time as the NPA palpably demonstrates that it can produce cases that result in convictions — and can prove a legal basis for it to hold on to alleged criminal proceeds — there can be no new dawn for an institution that hasn’t shown any real independence for over a decade.
Whether it’s Gordhan or the Guptas, the state appears to be using politics rather than solid evidence to drive its cases. Until that changes, the bulldog will remain toothless.