By Lehlohonolo Lehana.
The Free State High Court has struck of the roll the R280 million Gupta-linked Estina Dairy Farm case due to the unjustifiable delays by the state.
The trial which commenced yesterday, was postponed to today after the accused applied to the court to have their matter struck off the roll.
Judge Celeste Reinders says the delays are indeed unreasonable and cannot proceed under these circumstances.
The case involves allegations that R280 million in state funds were misappropriated by service providers with the assistance of government officials.The accused include former and current officials of the department, former department MEC Mosebenzi Zwane, Gupta Associates and linked companies.
The other accused are the former head of the Free State Department of Agriculture and Rural Development, Peter Thabethe; former chief financial officer of the Department, Seipati Dhlamini; former acting head of the Department, Takisi Masiteng; and the former sole director of Estina dairy farm, Kamal Vasram.
The second day of the trial saw dramatic developments with defence lawyers arguing that the state’s evidence handling has severely impeded their preparation.
Defense Senior Counsel (SC) Advocate Michael Hellens and other representatives presented a compelling argument to Judge Reinders, contended that the defense team was not adequately prepared for trial due to the late delivery of a crucial 5 terabyte hard drive. This hard drive, containing vital information for the case, was only provided to the defense in June, six weeks before the trial began and information contained in the hard drive still cannot be accessed.
Adv Hellens argued that this delay infringed on the accused’s right to access necessary information before the trial, asserting that the hard drive’s late provision had caused significant inconvenience and financial strain on the defense. He requested that the case be struck off the roll due to these issues, citing the unjustifiable delay and the resulting costs incurred by his clients.
In response, Senior Counsel (SC) Advocate Terry Motau, representing the state, argued the hard drive’s relevance was questioned only commencement of the trial. He said the state had to follow necessary procedures to secure the drive from the Netherlands last year. Adv Motau maintained the hard drive was intended to supplement the previously disclosed documents and that its purpose was to allow the defense to verify the information’s relevance. He then requested additional time for both the state and defense to discuss a postponement of the trial and to engage IT specialists to access the drive’s content.
Judge Reinders expressed concerns over the trial’s delays, questioning why the hard drive was not provided to the defense promptly. She highlighted the potential implications of further delays and the additional time required for the defense to prepare after reviewing the hard drive’s contents.
Judge Reinders ruled that the delays in the case were unreasonable, stating that the trial could not proceed under such circumstances.
The Estina Dairy Farm case, which has attracted significant attention, was featured in the latest installment of the State Capture report delivered to President Cyril Ramaphosa by former Chief Justice Raymond Zondo.
Zondo singled out Zwane, Thabethe and Ace Magashule, who was the Free State Premier at the time, as the primary architects behind the looting of the provincial department of agriculture through Estina.
The public funds which were meant to benefit disadvantaged black farmers in the province, were allegedly looted for the ultimate benefit of the Guptas.
National Prosecuting Authority (NPA) spokesperson Mthunzi Mhaga said that since Monday the state has been ready to proceed, with witnesses lined up.
The court’s decision followed an application by the defence for the case to be struck off the roll in terms of Section 342 A of the Criminal Procedure Act. The defence cited its inability to access the electronic version of the hard copies of the so-called “Gupta leaked emails”.
Section 342A empowers the court to investigate any delay in the completion of proceedings which appears to the court to be unreasonable. If the court finds the completion of proceedings is delayed unreasonably, it may — where the accused had not yet pleaded to the charge — order that the case be struck off the roll and the prosecution not be resumed or instituted anew without the written instruction of the director of public prosecutions.
However, the NPA remains undeterred in the pursuit of this matter and will take all necessary steps to reinstate it.