Advocate Ouma Rabaji-Rasethaba
Pretoria - The article, “Gupta mine haunts NPA” (September 8, 2022) reflects some of the complexities involved in pursuing the perpetrators of crimes that took place during the state capture era.
Unfortunately, these complexities can sometimes be misunderstood, misinterpreted or misrepresented.
One example of this is the suggestion in the article that the NPA has applied “selective justice” by appointing Mr PJ van den Steen as curator bonis in the preservation order that is now in place at Optimum Coal Mine.
There can be no dispute that Optimum Coal Mine (OCM) was bought using the proceeds of the crimes of corruption, fraud and/or theft at state-owned enterprises.
It is for this reason that the Investigating Directorate and Asset Forfeiture Unit (AFU) approached the courts in March this year and successfully obtained two preservation orders relating to the purchase of the mine and Optimum Coal Terminal by Tegeta Exploration and Resources, a Gupta family linked company.
The value of the order, R2.4 billion, does not include the valuation of the mine itself, and it is expected that the total value of the orders can exceed R8bn once the mine has been valued.
Even excluding the outstanding valuation of the coal mine, this is the largest cumulative preservation order in the AFU’s history and a major achievement in the fight against state capture.
This brings me to some of the points raised in the article, and in particular the suggestion that the NPA is “haunted” by the mine because Mr Van den Steen acted as business rescue practitioner at the mine when it was sold to Tegeta in 2016, and has been appointed by the court as curator bonis in 2022 in the preservation order.
First, the suggestion that Mr Van den Steen is conflicted has no merit. Many people had to approve the sale of OCM in 2016, including the owner, Glencore, the creditors such as Eskom, the Competition Commission and the joint business rescue practitioner (of which he was one).
As joint business rescue practitioner, he was responsible for the management of the mine’s activities – he did not take executive decisions around its sale. Second, he never acted unlawfully or with intent to facilitate a crime. The crimes were committed without the knowledge of the business rescue practitioner and were discovered later after the business rescue process was completed.
It is important to note that, at the time the sale of the mine was under discussion, Mr Van den Steen and his fellow business rescue practitioner, Mr Piers Marsden, filed various documents with the authorities out of extreme caution as they suspected that there were large-scale nefarious activities at hand, but they were unable to prove anything as they were not in the circle of decision-making.
The business rescue practitioner did the right thing by filing a suspicious transaction report at the Directorate for Priority Crime Investigation, which became the basis for the asset recovery action that is now coming to fruition.
Most of the information that the State relies on to make its claims were discovered or obtained subsequent to the sale of the mine to the Guptas. Their report was filed in terms of section 34(1)(a) of the Prevention and Combating of Corrupt Activities Act and has been of great value in the NPA’s efforts to bring about justice.
The nefarious activity is clearly outlined in the affidavit filed by the AFU in July this year and includes substantial pressure being brought to bear by various parties such as Eskom, the Department of Mineral Resources and trade unions to ensure that Optimum was sold by Glencore and bought by the Guptas.
The fact remains that the acquisition of OCM was in itself a crime. That is why the court ruled in favour of the state for the preservation of the mine and its holding company to achieve the objectives of the Prevention of Organised Crime Act.
It is also important to point out that nobody objected to Mr Van den Steen’s appointment as curator during the preservation hearing, despite all the parties being represented by competent attorneys and advocates.
In conclusion, throughout this process, the NPA has acted in pursuit of justice. The legal processes that have been triggered in response to the actions of the Guptas take time, and we fully understand the distress this may be causing mineworkers, their families and their community.
We are acting as speedily as possible to conclude the forfeiture application relating to the mine so that there can be certainty for all those affected.
In our view, if anyone should be “haunted” by Optimum, it is the Guptas themselves.
Pretoria News