The NPA’s Asset Forfeiture Unit (AFU), which recently obtained a provisional restraint order against eight accused in the Estina Vrede Dairy project, has failed miserably, a legal expert has said. 

Advocate Deon Pool told News24 on Monday that the first mistake the NPA made was to advertise in the media that they were going after the assets. 

“A preservation order, by nature, is done in chambers and it is supposed to be a secret,” Pool said, shortly after the Free State High Court ruled in favour of Gupta-linked companies and individuals who challenged a provisional restraint order targeting assets estimated at R250m.

The restraint order was obtained in April, but the criminal case is still pending.

“The first time they did it, they failed miserably and, the second time, they also failed miserably. They did not learn from their mistakes,” Pool said.

He said Judge Philip Loubser had highlighted in his ruling that the affidavit prepared by the NPA was lacking, and that the allegations made amounted to speculation.

“One would expect that the matter that carries such high profile would at least be considered along the lines of, ‘do we at least have enough?’.

“One would think that [National Prosecuting Authority head] Shaun Abrahams would at least read affidavits and ensure that [it is] water tight and not challenged. The bottom line is that is it concerning that the judge said this is incompetence.”

‘We are on track’

Pool also added that the NPA’s loss did not mean that they could not proceed with the case.

Meanwhile, NPA spokesperson Luvuyo Mfaku said they would be filing a forfeiture application soon, adding that their loss was not a reflection of the strength of their criminal case against the eight accused.  

“Look, when you take a matter to court, you expect to be challenged, and this one was no different, and what you must recall is that we still have a preservation order that is standing for assets worth more than R140m,” Mfaku said.

“The information that was included in our application was based purely on the charge sheet. When it comes to the criminal case, we are on track. They [the accused] are not acquitted and will still appear in a criminal court, and we have got evidence that we believe that our chances of success are very reasonable.”

The NPA also suffered a huge setback in March when the High Court in Bloemfontein ruled in favour of controversial Gupta brother Atul in his application to have a preservation order, obtained against him by the NPA’s Asset Forfeiture Unit (AFU), set aside.

Judge Fouche Jordaan ruled at the time that the R10m in Gupta’s accounts be unfrozen.

He, however, amended his previous order pertaining to Gupta-linked companies and Bank of Baroda.

The AFU had initially wanted R220m preserved.

8 arrests

In February, eight people were arrested during raids at various locations, including the Gupta compound in Saxonwold and their offices in Sandton.

They are Estina director Kamal Vasram, former directors at the Guptas’ holding company Oakbay – Varun Gupta, Ronica Ragavan, Nazeem Howa and Ashu Chawla – and Free State officials Peter Thabethe, Sylvia Dlamini and Takisi Masiteng.

Luxury vehicles, immovable properties and bank accounts were some of the assets which are subject to the provisional restraint order.

One hundred black emerging farmers were promised five cows each as part of the empowerment scheme, but they never received them.

Gifted to the Gupta-linked Estina in 2013 under a free 99-year lease by the provincial agriculture department, the farm has been one of the most scandalous transactions between the Guptas and a government entity.

The #GuptaLeaks revealed in 2017 how at least R30m paid to the Guptas, via the farm, ended up funding the family’s lavish Sun City wedding in 2013.