The Optimum Coal Mine and Terminal, once owned by the Gupta brothers, are to be retained as South Africa’s state property after a Supreme Court of Appeal (SCA) decision in favour of the National Prosecuting Authority (NPA).
The business rescue practitioners of the Guptas’ mining company Tegeta Exploration and Resources, Optimum Coal and Optimum Coal Terminal, the National Union of Mineworkers and two companies belonging to former Gupta business associate Daniel McGowan had appealed an earlier high court decision to allow the Asset Forfeiture Unit of the NPA’s to preserve the Gupta mine and coal terminal, the weekly Sunday Times reported.
The coal assets, estimated in March last year to be worth more than USD 219 million, are part of several Gupta-owned assets seized by the NPA after the three brothers and their families fled the country to avoid charges of corruption.
They are believed to be in self-exile in Dubai as the authorities of the two countries continue engagement for their extradition.
The Guptas are alleged to have stolen billions of rands from several government and parastatal institutions, allegedly through their closeness to former President Jacob Zuma.
The Commission of Inquiry into State Capture, which finished its investigation last year, saw many witnesses fingering the Gupta brothers and their lackeys, allegedly appointed in high positions and even in government through their intervention.
In a unanimous judgment, the SCA last week ruled that the preservation order could not be appealed because it was not a final order. It said the appellants would have the opportunity to challenge the final forfeiture order.
The case was struck off the roll with costs, including that of two counsels.
The judgement said that the Guptas acquired Optimum through illegal means including fraud, theft and money laundering, and that the preservation order and pending forfeiture order of Optimum was “directed at recovering the proceeds of crime linked to the corrupt scheme that culminated in the acquisition of Optimum by the Gupta family”.
McGowan, Optimum’s largest creditor, is alleged to have helped the Guptas buy the mine and now wants to buy it through his company Templar with the help of the BRPs and trade union NUM, which believes that the plan is the only way to save jobs at the mine and help its members receive what is owed to them, the weekly reported.
“The current business rescue plan, if put into effect, would allow Templar, which is controlled by Mr McGowan, to use the tainted … claims to acquire a benefit ultimately for Mr McGowan. It is for this reason, according to [Batohi] that effect cannot be given to the present business rescue plan,” it said, citing the judgement.
The weekly said that in an affidavit last year, McGowan denied knowing about the Guptas’ alleged criminal activities before going into business with them and said he “had no reason to believe that the monies we were loaned or paid [for Optimum] were proceeds of crime”.
NPA spokesperson Mthunzi Mhaga said the NPA welcomed the judgment to allow preservation orders to ensure those who engage in illegal activities do not benefit from crime.