EDITORIAL: NPA's state-capture setbacks are deeply worrying
Given the weight of the evidence, it seems incredible that the National Prosecuting Authority (NPA) could possibly lose multiple cases following its seizure of the Gupta clan’s assets. Perhaps it’s not incredible at all.
The NPA has now lost two successive cases in which it sought not to prosecute members of the clan but simply to secure their assets.
As soon as President Cyril Ramaphosa took office, the NPA swooped on the Gupta compound in dramatic fashion to seize assets before they could be spirited away.
The timing itself was suspicious. Why wait until a new president is in office? Clearly because the organisation was being restrained, either specifically or implicitly, by those higher up the political ladder before the change.
When the raids took place, most South Africans probably thought better late than never. Now the truth is beginning to dawn. Since the NPA has been deliberately degraded for more than a decade, most of its competent staff have either been kicked out or have resigned.
The ease with which the dual preservation orders were overturned was astounding. In a preservation order, what the Asset Forfeiture Unit (AFU) has to show is essentially that the assets were possibly the proceeds of criminal activities and that there are reasonable grounds to believe that an accused may be successfully convicted. This is not a fantastically high bar to jump, but it has to be cleared.
The NPA’s first problem happened a few weeks ago when Judge Fouche Jordaan, of the High Court in Bloemfontein, reversed his order authorising the preservation of R180m in Gupta assets. We know from the leaked Gupta e-mails more or less what happened. About R220m in state funds was granted to the Estina dairy project over a five-year period by the then Free State agriculture department. At the time it was under the leadership of former mineral resources minister Mosebenzi Zwane.
The problem is obvious: after spending more than a decade trying desperately not to bring any cases, the NPA has clearly lost its technical ability to do so
Much of the R220m allegedly ended up in the accounts of the Guptas and some of their associates. The leaked e-mails revealed in 2017 how at least R30m paid to the Guptas, via the farm, funded the family’s lavish Sun City wedding in 2013.
One of the problems was the AFU failed to show that the money that moved from the Estina dairy was the same money that then moved into the Gupta accounts. This bungle was exacerbated this week when the unit applied for a freezing order before Judge Phillip Loubser. He was unable to come to the conclusion that it was likely the accused would be successfully convicted on the evidence presented.
The NPA now claims that the fact the preservation order was not granted does not affect its criminal case. In a technical sense, this is correct. But since a judge has already cast doubt on the evidence at hand, its confidence is probably misplaced.
The problem is obvious: after spending more than a decade trying desperately not to bring any cases, the NPA has clearly lost its technical ability to do so.
In the case presided over by Jordaan, the Guptas’ advocate, Mike Hellens, argued that the NPA’s case demonstrated "reckless incompetence" in its framing of the transactions involved and he described it as a "national embarrassment".
The NPA’s other problem is that even if it manages to bring a successful criminal prosecution, the failure of the preservation orders means the assets will probably vanish.
The failure of the cases has other worrying implications, too.
It suggests the NPA rushed into charging members of the Gupta clan in order to satisfy the wishes of politicians, rather than because it had a solid case in hand. This seems to be a characteristic of the NPA under the leadership of Shaun Abrahams.
The more gloomy possible concern is that for one reason or another, the NPA is deliberately not bringing its best game. Perhaps it does not want to embarrass some senior ANC politicians. It seems unlikely, but when these kinds of failures happen, people do wonder.
The NPA needs to do the obvious: finally eject Abrahams, re-establish the organisation by bringing in competent senior staff, and live up to its mandate, which is to prosecute without fear or favour.