The Investigating Directorate of the National Prosecuting Authority (NPA) filed an application for leave to appeal after its loss in the first so-called state capture trial citing “gross irregularity” after the court discharged the accused.
The case concerns corruption charges the NPA brought against several officials from the Free State department of agriculture. The state accused them and others of paying almost R25m to Gupta-linked company Nulane Investments for a study related to the infamous Vrede dairy farm project. This project aimed to empower black farmers, but they were sidelined when the money went to others with alleged ties to the Guptas.
The NPA failed to show the accused all worked together to siphon money for corrupt ends through the agriculture project. The NPA labelled the Free State High Court’s finding a possible “miscarriage of justice” and “prejudicial to the State.”
After the high court found last month that the NPA failed to “pass even the barest of thresholds” to establish criminal liability, judge Nompumelelo Gusha tossed the matter out. In her judgment, she slammed the NPA and investigators’ “lackadaisical” handling of the case.
After months at trial, judge Gusha found the NPA had not done enough to establish even an impression of criminal liability. She granted a discharge for seven of the accused, including Gupta associate Iqbal Sharma, while she acquitted former Free State agriculture department head Limakatso Moorosi.
The NPA on Tuesday said another court would find the NPA “had presented [sufficient] evidence upon which a reasonable court might convict [the accused].” Another court would also find that “granting the discharge was a misdirection, which was contrary to legal precedent, constituted a gross irregularity in the trial and was prejudicial to the State”.
The NPA also says Gusha “erred” in her test for a discharge, in terms of relevant legislation. The NPA viewed this as “a miscarriage of justice” since the accused were “acquitted”, despite there being, for the NPA, sufficient evidence to prove criminal liability.
A discharge enquiry, the NPA says, does not require a court finding that the NPA’s evidence “at [that] stage is plausible or constituted proof of guilt beyond a reasonable doubt”. Another court would find the evidence presented at that stage “called for a reply” from the accused.
The NPA also says Gusha was wrong in her handling of evidence and how she handled a witness who testified on condition of obtaining indemnity from criminal activity in which he was implicated. Gusha, in her judgment, found this witness had not done enough to obtain indemnity with his evidence not being corroborated by anyone else and the witness being “evasive” on the stand.
Gusha also found the NPA had not established the doctrine of common purpose, which is where several people work together to achieve a criminal end. However, the NPA says another court would find its evidence does demonstrate this.
Gusha, in her judgment, found that the NPA had failed to authenticate any document it relied on in evidence. But the NPA says another court “would find that the learned judge erred by making contradictory rulings which prejudiced the State”.
If granted leave, the matter will be heard by either a full bench in Bloemfontein or the Supreme Court of Appeal.
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