Ajay, left, and Atul Gupta are reportedly in the UAE.
The state’s bid to wrest back control of about R1.6 billion worth of assets belonging to the Gupta-linked consultancy firm Regiments Capital kicked off in the High Court in Johannesburg on Monday.
In November 2019, the court provisionally froze the assets – alleged to be the proceeds of crime – but then last October, it reversed this ruling after finding the state had failed to disclose various material facts during the initial proceedings.
However, the National Director of Public Prosecutions (NDPP), represented by investigating directorate head Hermione Cronje, is now appealing that decision before a full bench, led by Judge Raylene Keightley.
The material facts the court in its October 2020 ruling found the state had failed to disclose, included that there had been what Regiments described as an “anti-dissipation” order handed down.
They also included that there was a settlement agreement between the company and Transnet.
In arguments before the full bench, advocate Geoff Budlender (for the NDPP) said an investigator couldn’t disclose facts he or she wasn’t aware of, as well as that he or she only had a duty to disclose facts that were material.
When it came to the “anti-dissipation” order that had been handed down, Budlender emphasised it came on the back of a dispute between shareholders and only prevented them from taking any decisions that were not arrived at jointly.
“It provided no guarantee or protection to creditors, to the NDPP, or to anyone else,” he said.
“It was not an order directing how the assets must be used.”
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Budlender argued the “anti-dissipation” order did in fact not have to be disclosed. There was nothing in the “anti-dissipation” order preventing Regiments and its shareholders, acting in concert, from dissipating the assets, he said further.
In terms of the settlement agreement between Regiments and Transnet, meanwhile, Budlender argued an agreement to make a payment in settlement of civil claims, without any admission of liability, wasn’t relevant to the determination of any of the issues before the court.
“They [Regiments] say that at the time the application was launched, Regiments had undertaken to pay Transnet R180 million in full and final settlement of Transnet’s claims against Regiments, including those arising from the facts on which the restraint order is based, and that accordingly those claims ‘have become settled as far as the Regiments defendants are concerned’; and Regiments says that it will pay Transnet in ‘due course’,” he said.
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He said Regiments had not made the payment at the time.
“In any event, advocate Cronje explained that she became aware of the Transnet settlement only after the interim restraint order had been made,” he added.
The hearing of the appeal has been set down for this week.
– bernadettew@citizen.co.za
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