A milk processing plant is pictured at the Estina Dairy Farm in Vrede, Freestate on August 10 2018. Picture: ALAISTER RUSSELL/SUNDAY TIMES
A milk processing plant is pictured at the Estina Dairy Farm in Vrede, Freestate on August 10 2018. Picture: ALAISTER RUSSELL/SUNDAY TIMES

The National Prosecuting Authority (NPA) is dropping its hallmark state capture case against Gupta family members and business associates accused of involvement in the alleged Estina Dairy Project scam,  but has stressed that this doesn’t mean that the prosecution is dead.

The Estina case was one of two state capture prosecutions taken to trial by the NPA. The withdrawal of the charges — in circumstances where it’s unclear whether the state will get the evidence it needs to ensure convictions — is a blow for President Cyril Ramaphosa’s campaign to clean up rampant state corruption. The president is set to announce the new National Director of Public of Prosecutions in the coming weeks.

The NPA notified lawyers for the Guptas and their associates of its decision in a letter sent to them on Wednesday, in which the prosecuting authority  stated that it  “has not received information regarding the Mutual Legal Assistance requests made to India and the United Arab Emirates, as a result the investigations are not finalised”.

The  prosecuting authority had until Friday to hand over the finalised docket and indictment in the case, in which it alleged that R250m intended for uplifting poor black farmers in the province was siphoned to Gupta companies. If it did not do so, the case would have been struck from the roll.

This was after the Bloemfontein Magistrate’s Court in August gave prosecutors three months to complete their investigation, so the accused could go on trial.

Magistrate Collin Nekosi criticised the state for a “lacuna in decision-making” that “has resulted in unreasonable delays in the completion of the proceedings‚ which if left unchecked could substantially prejudice the accused”.

“I’m left with the impression that there has been no momentum to the investigation as one would expect in a matter of this nature. This contributes to the delay by the state being even more reprehensible‚” he said.

Charges will now be withdrawn against former Oakbay CEO Nazeem Howa, Varun Gupta, the nephew of the Gupta brothers, former Sahara Computers CEO Ashu Chawla, Estina director Kamal Vasram and three Free State provincial government officials Peter Thabethe, Sylvia Dlamini and Takisi Masiteng.

They were all arrested on February 14, just hours before Zuma resigned. They faced charges of fraud, theft, conspiracy to commit fraud and theft, contravening the Public Finance Management Act, contravening the Companies Act and contravening sections of the Prevention of Organised Crime Act.

“The state intends to provisionally withdraw charges against the accused on 4 December 2018.”

Speaking to Business Day on Wednesday, the NPA’s Luvuyo Mfaku said the case could be reinstated “once our investigation has been finalised, and all outstanding information obtained”.

Gupta attorney Rudi Krause said the family was “relieved that the charges in the so-called Estina matter will be withdrawn next week”. 

“This is especially so in light of the fact that the charges ought not to have been preferred against our clients in the first instance,” Krause said.

Earlier in 2018, the state described as a “devastating”  when the Bloemfontein High Court ruled that there was not   enough evidence linking   the seized R250m Gupta assets to the alleged Estina Dairy Project scam.

Judge Phillip Loubser said the evidence that the state relied on was “unreliable” and showed “many shortcomings that remain unexplained at this point”.

The NPA did not attempt to appeal that ruling.