File photo: National Director of Public Prosecutions (NDPP) defense lawyer Shamila Batohi. (Phil Magakoe/Gallo Images/Getty Images)
NDirector of Public Prosecutions Shamila Batohi said on Wednesday that she had doubts about Middleburg District Court Judge's decision to quash the fraud and money laundering case against former Eskom chief executive Mashela Koko.
Asked about the case at a media briefing, Batohi said Judge Stanley Jacobs' decision to quash the case on grounds of undue delay was the toughest option at his disposal.
“In that particular case, the judge could have made one of several orders. Several. He took the most drastic order, to strike, and we ask why. There is a need,” she said.
He added that the National Prosecuting Authority (NPA) is, in principle, careful not to publicly criticize court decisions.
“However, it is true that in this case different orders could have been made. The most drastic plan was made, but now we may understand why that was the case.”
Mr Batohi was referring to the fact that Mr Jacobs had been found not to have disclosed his transaction history with Eskom since his sentencing in November last year.
news 24 He reported being a director and shareholder of a company called BEP African Consulting. He reportedly resigned as director in 2001 but was reappointed in 2008. The company had won a number of small contracts to supply materials to power plants.
Koko was arrested in the early hours of October 27, 2022, on charges of attempting to obtain personal benefits from the Kusile power plant contract signed with a local affiliate of Swiss engineering company Asea Brown Boveri (ABB). Ta.
But a year later, the NPA was not ready to proceed to trial.
After the prosecution again postponed the acquisition of six outstanding witness statements from abroad (three each from Germany and the United States) and asked to await the final forensic report, the defense requested that the Criminal Procedure Code He requested an investigation based on Article 34, Paragraph 2. , yet another data analysis report.
In conclusion, Mr Jacobs removed Coco and his seven co-accused from the case and warned that “the matter does not just go to the District Court or High Court for investigation”.
Lawyer Tiny Seboko, a junior prosecutor appointed to lead the prosecution, claimed the investigation was nearly complete, but Jacobs said without a forensic report detailing the flow of funds between the suspects, the state said he was sure nothing could be done.
He was furious at the unwieldy scope of the investigation, given that investigators were looking at 18 gigabytes of data, or a “mind-boggling” 1 billion pages, and told the court He said it is not a repository for cases that are not ready for trial.
This is the second time in seven months that the NPA's Investigative Directorate has failed to sustain money laundering charges, which are considered to be entry-level state capture cases.
In April last year, the Nulane Investments trial concluded with the release of key players of the Gupta brothers.
The Free State High Court has therefore set minimum standards for the state to prove that Iqbal Sharma, Ronika Raghavan, Dinesh Patel and other Free State officials conspired to defraud the state of more than R24 million. The court ruled that it did not exceed.
The National Police Agency is appealing this ruling.
“This was probably one of the most scathing judgments I have read in my life,” Batoi said of Acting Judge Nompumelelo Gusha's judgment.
He said the National Police Agency and the General Bureau of Investigation were trying to learn lessons from the setback.
“We know better than anyone the risks these incidents pose to the NPA, and we don't want others to simply say, 'Well, everything worked out for us,' and there was nothing else that could be done. Can't blame you.
“We have to have very tough and difficult conversations with ourselves to ensure we learn what went wrong and put in place interventions to ensure we minimize the risk of it happening again. not.”
ID Director Andrea Johnson said she did not consider the losses the agency had suffered to be “frivolous” and had done extensive self-reflection.
“We've learned the lesson. We can't replay it because that's the reality, but without some internal introspection and some very difficult discussions with the teams involved, we will.”
In the Nulane case, prosecutors stumbled at the first hurdle because they failed to prove that Free State authorities broke the law and illegally awarded Mr. Sharma's newly formed Nulane Investments a contract amounting to a feasibility study. Ta.
Without proof that the funds were stolen, money laundering charges related to the countless transfers that were subsequently made between companies in the Gupta brothers' business empire became difficult to sustain.
However, questions were raised as to why evidence could not be produced from the Bank of Baroda records at its disposal to prove the fraud that ultimately paved the way for the Frede Dairy scandal.
Mr Johnson said on Wednesday that the directorate remained severely understaffed, with just 20 members, and that Cyril would introduce the National Prosecuting Authority Amendment Bill, which would give the department permanent powers to recruit more staff. He said he was waiting for President Ramaphosa to promulgate it.
The bill was approved by the National Council of States and sent to the president for assent last month.
Observers warned that the challenge for the Directorate of Investigations was not simply to increase staff, but to find people with the skills to prosecute complex financial crimes.