NPA applies for right to sell Optimum mine in a bid to recover state capture proceeds.

By Lehlohonolo Lehana.

The National Prosecuting Authority (NPA) has applied to the Gauteng High Court to have shares valued at more than R3.4 billion, owned by the Gupta family’s Tegeta Exploration & Resources, forfeited to the State.

“The application seeks to have the shares…forfeited to the State on grounds of having been acquired through the proceeds of unlawful activities and the instrumentality of money laundering under the Prevention of Organised Crime Act,” the NPA said in a statement. 

The application follows a preservation order that the court granted in March for the attachment of all of Tegeta’s shares in Optimum Coal Mine (OCM) and Optimum Coal Terminal (OCT).

The preservation order included OCM’s businesses. 

Deputy National Director of Public Prosecutions (NDPP) Ouma Rabaji-Rasethaba, who is responsible for asset forfeiture, explained that the application was one of the NPA’s moves to claw back the proceeds of state capture as per the recommendations of the State Capture Commission’s report. 

In a founding affidavit filed at the High Court, Rabaji-Rasethaba included a wide range of respondents, such as OCM, OCT, their business rescue practitioners, curators, Tegeta, the National Union of Mineworkers, Templar, Liberty Coal – which has made an acquisition offer for Optimum and creditors who have made claims against OCM and OCT. 

Creditors were included due to an application for an order invalidating OCM and OCT’s business rescue plans, in which it is alleged that the plans’ implementation was a violation of the Prevention of Organised Crime Act.

However, Rabaji-Rasethaba said the court’s order was subject to “legitimate” claims from creditors and business rescue practitioners.

The protected claims exclude shareholder loans made to OCM and claims from creditors which the Guptas, Salim Essa and McGowan are known to have an interest in.

Essa is a Gupta associate who has been identified as one of the involved in state capture. He, along with three of the Gupta brothers, has been sanctioned by the US Treasury.

Rabaji-Rasethaba added that parties related to the Guptas and Essa “distorted” the current business rescue plan, which is another reason the plan should be declared invalid.

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