Net tightens on Gupta-linked Trillian
What took so long, labour federation asks ahead of court order for asset preservation being served on Trillian and McKinsey
The Asset Forfeiture Unit would on Tuesday serve an order to preserve about R1.6bn in assets of global consulting firm McKinsey and of the Gupta-linked Trillian Capital Partners, the National Prosecuting Authority (NPA) confirmed on Monday.
Meanwhile, City Press reported on Monday night that the Hawks had obtained warrants for the arrest of at least one of the Gupta brothers.
The unit was waiting for prosecutors at the NPA to sign off the warrants so that the arrests could be effected, it reported. A senior Hawks official told City Press that a magistrate had issued warrants of arrest for at least one of the Gupta brothers as well as an undisclosed number of the family’s associates. However, he was unable to say which of the brothers faced arrest or reveal the identity of their associates in the Hawks’s sights.
NPA spokesman Luvuyo Mfaku said the action would be taken on the basis of an ex-parte application that the NPA successfully brought in the High Court in Pretoria under the Proceeds of Crime Act in the middle of December against the two companies for the preservation of assets of R1.6bn.
He indicated that work on other ex-parte applications for the forfeiture of assets in other cases was far advanced but would not disclose details.
"We are going to formally serve the court order on the parties," Mfaku said.
Questions have been asked about why the asset-forfeiture team took so long to act on the court order, a delay that insiders said was unprecedented. It is understood that national director of public prosecutions Shaun Abrahams resisted the implementation of the asset-preservation order and that there was a "huge fight" in the NPA over the issue. The South African Federation of Trade Unions (Saftu) evidently applied pressure on the NPA to force Abrahams’s hand, threatening to take the matter to court. Mfaku, however, said the long delay in giving effect to the order was because the asset forfeiture team was
Saftu spokesman Patrick Craven said the federation was "concerned that the order took one whole month to execute after being granted by Judge [John] Murphy on 15 December 2017. We call on the curator to move with all due speed now."
Questions were also asked about why the Asset Forfeiture Unit had prioritised McKinsey when the company had already given an undertaking that it will pay back the R1bn it earned in fees from Eskom in the absence of a valid contract approved by the Treasury. Trillian received about R500m from Eskom, delivering little in the way of services in return and it has not agreed to pay back the money.
In terms of the law, assets can be frozen pending the successful prosecution on criminal charges or the successful application to court for the assets to be forfeited to the state on the basis that they are the proceeds of a crime.
The application for an order for the forfeiture of assets — argued on the basis of a balance of probabilities — can be undertaken separately from the criminal case, which can take many years to finalise. The NPA has 90 days after the receipt of a preservation order to apply for a forfeiture order.
Craven said Saftu was "outraged that the NPA and Hawks have still made no progress with the criminal prosecutions. The Asset Forfeiture Unit team has only been on board since late 2017. However, the NPA and Hawks already knew since late 2016 that Trillian was involved in theft, fraud and corruption.
"With the investigatory tools at the NPA’s disposal, Salim Essa [a Gupta associate involved with Trillian], Eric Wood [Trillian CEO] and the Guptas could long ago have been put in the dock.
"It is well known that Shaun Abrahams has been blocking this event."
He continued: "The order granted against McKinsey and Trillian is the result of constant pressure by Saftu and the good work of honest Asset Forfeiture Unit lawyers and investigators. It is the beginning of the closing of the net. But it is not evidence of Shaun Abrahams’s work. It occurred despite him. The time has come for him to leave the NPA in the hands of dedicated and uncaptured souls."
Saftu laid charges against Trillian and its shareholders in October and has engaged with the Asset Forfeiture Unit through its lawyers to get the asset preservation order obtained and implemented, Craven said.