Ajay, front, and Atul Gupta. Picture: MARTIN RHODES
Ajay, front, and Atul Gupta. Picture: MARTIN RHODES

The National Prosecuting Authority (NPA) has missed its deadline to appeal against the unfreezing of R250m in Gupta properties and cars — but the state is adamant this does not mean the end of its bid to permanently seize those assets.

In May the state suffered what it described as a "devastating" ruling in the High Court in Bloemfontein, which was not satisfied there was adequate evidence linking the assets to the alleged Estina dairy scam.

Judge Phillip Loubser said the evidence the state used was "unreliable" and showed "many shortcomings that remain unexplained at this point".

The state maintains the Estina project, meant to empower poor black farmers, was a sham that involved fraud and money laundering. So far, however, it has struggled to produce evidence that the Guptas were embroiled in this.

Despite indicating that it was unhappy with the Loubser ruling, the NPA has not filed a notice that it will appeal.

"We do have the option of applying for condonation to appeal this judgment if we decide that is what we want to do," NPA spokesman Luvuyo Mfaku told Business Day.


"But we are still considering our legal strategy going forward, but that is not something that we wish to ventilate in the media."

That strategy, it seems, may include another new application by the Asset Forfeiture Unit (AFU) to freeze assets it believes are linked to the alleged scam.

That is clearly what the Guptas’ lawyers believe the AFU is planning.

They have already written to the NPA to seek a promise from the state that they will not bring a fresh asset-freezing application without notifying them first. The lawyers have promised that the Guptas have not disposed of the affected assets, and will agree not to do so.

"No dissipation of assets has taken place, and there is no reason to proceed ex parte [without notice]," lawyer Rudi Krause wrote to the NPA.

"The NPA has in the past manifestly failed to bring pertinent and material facts to the attention of the courts approached ex parte and thus failed in its duty of an ex parte litigant to act with (utmost good faith)," said Krause.

"That much was confirmed by the Honourable Mr Justice Loubser in his judgment. In the circumstances, we trust that it would not be necessary for our clients to be subjected to any further ex parte application(s)."

The NPA would not be drawn on whether it is planning what would be its third attempt to freeze Gupta assets.