The National Prosecuting Authority (NPA) has secured R1bn in assets from Gupta-linked Regiments Capital and its directors in an important court victory as the authority pursues wider prosecutions of crime linked to state capture.
Some Regiments directors opposed their property, worth hundreds of millions of rand, being included in a restraint, but the Supreme Court of Appeal (SCA) dismissed their claim.
In 2020, following the release of the state capture report, Regiments was implicated in alleged corrupt dealings with Transnet related to tender awards and its pension fund.
The NPA was granted a restraint order over Regiments’ assets to the value of more than R1bn. The NPA wants to take control of such assets, which it calls “ill-gotten gains” looted from state coffers, and return some benefit to the fiscus.
Regiments directors Eric Anthony Wood, Magandheran Pillay and Litha Mveliso Nyhonyha were indicted on charges related to that corruption, and their personal property became part of the restraint order. Their prosecution is ongoing.
Trusts and companies that controlled the directors’ property appealed to the SCA after losing in the high court, arguing that the directors’ property was beyond the restraint order.
However, the SCA dismissed their appeal bid on Wednesday.
“The [NPA] has met the case [it] is required to make,” SCA judge Daisy Molefe wrote for a unanimous court.
Molefe noted that under the Prevention of Organised Crime Act, the NPA is allowed to take control of property from an accused person that arose as a benefit of an alleged crime. This is done through a restraint order.
Proceeds disappearing
“The purpose of a restraint order is to preserve assets pending the final determination of criminal proceedings,” she wrote.
Restraints are interim measures that prevent the possibility of illicit proceeds disappearing during prosecution. If the person is convicted, the restrained assets can be fully confiscated and ideally used to benefit victims.
Regiments directors Pillay and Nyhonyha had their property in trusts and said they were not “in exclusive” control of, for example, loans and assets that the restraint order aimed to contain. That put the property “beyond the restraint order”, they argued.
However, the NPA showed some of the directors had filed affidavits indicating they used their family trusts to hold shares in Regiments — assets that now fell into the ambit of the restraint order.
Molefe found that the trusts and companies on behalf of the Regiments’ directors had “put forward a narrow and decontextualised” argument.
The NPA had made its case to show the directors were in control of the assets, even if the properties were tied up with other trusts and companies, she found.
Molefe dismissed the case with costs, allowing the NPA to proceed with its case.
The NPA, when it first launched its case, said a major benefit of the order is that pensioners who relied on Transnet’s retirement fund “will have access to the shares”. Due to the SCA’s findings, that and other benefits can continue, as well as the ongoing prosecution.
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