By Lehlohonolo Lehana.
The Supreme Court of Appeal (SCA) has given the National Prosecuting Authority (NPA) the green light for a retrial of the accused in the Gupta linked Nulane Investments case.
The SCA judgment means that the NPA will bring the Gupta-linked accused back before the courts.
This follows the acquittal of five accused in the nearly R25 million Nulane Investments fraud and money laundering case.
The charges were dismissed by the Bloemfontein High Court in April 2023.
This comes after five of the six accused successfully applied for the charges to be dropped in terms of Section 174 of the Criminal Procedure Act.
According to Section 174, an accused person can bring an application against the State to be acquitted if the State fails to make its case.
The eight accused were on trial for charges ranging from fraud and corruption to money laundering in connection with a R24.9-million feasibility study that led to the controversial Vrede Dairy project – a flagship project for the Free State department of agriculture that cost the provincial department more than R280-million.
The department appointed Nulane Investments to do the feasibility study, although it allegedly did not have the capacity to do so. The State further alleged that the department appointed the company without following a procurement procedure and instead wrote a deviation memorandum that cited Nulane Investments as a sole service provider.
Nulane then outsourced the service to Deloitte for a fee of R1.5-million – a fraction of what the provincial government paid to the company. Once paid to Nulane, the majority of the cash was allegedly laundered and diverted through a scheme of transactions into and through different bank accounts and Gupta-linked entities.
Acting Judge Nompumelelo Gusha slammed the State for its poor treatment of essential documents which were imperative for the case, which led the records to be found inadmissible.
Gusha said it was “an inescapable fact” that nearly R25 million left the fiscus, yet the state has failed to show what happened to that money.
The NPA wlecomed the judgement and said the SCA has ordered that the accused may be tried before a different judge.
“After a thorough interrogation of Acting Judge Gusha’s judgment, the IDAC team took the view that the judge erred in applying the test applicable in terms of Section 174 of the Criminal Procedure Act,” the NPA said in a statement.
“This SCA judgment confirms our view that the Acting Judge misdirected herself in applying the relevant principles with regard to the case and erred in her strong criticism of the prosecution team.
“This judgment paves the way for IDAC to reinstate the case within a reasonable period.”
The NPA said it remains resolute in its stance of effectively prosecuting and holding accountable those responsible for state capture-related corruption.