Court orders preservation order for Guptas' mine rehabilitation funds
The National Prosecuting Authority (NPA) has secured a court order to preserve the mining rehabilitation funds of two Gupta-owned mines held by the Bank of Baroda which intends to leave South Africa.
According to the North Gauteng High Court order, dated March 8, the money in the in the Optimum Mine Rehabilitation Trust (OMRT) and the Koornfontein Mine Rehabilitation Trust (KMRT) has to be transferred from the Bank of Baroda to Nedbank for safekeeping, with interest.
The amounts involved are R1 469 916 933.63 in the OMRT and R280 000 000.00 in KMRT.
The Bank of Baroda’s majority shareholder is the Republic of India, and though not registered as a bank in South Africa, is allowed to use Nedbank as its banking platform in South Africa. The Bank of Baroda was also the only bank willing to transact with the Guptas after the “big four” banks in South Africa foreclosed on them.
The order was granted in terms of the Prevention of Organised Crime Act and is intended to preserve the money, and to prevent anybody from taking from the fund, or diminishing their value, if the NPA’s forfeiture application relating to the funds is successful.
The money is to stay with Nedbank until a forfeiture order is granted and if anybody with the right to, needs to access the funds, it can only be done via application to the NPA and the Department of Mineral Resources (DMR).
Within 30 days of the order, the Bank of Baroda must also give the NPA and DMR documents relating to the interest rates for both trust accounts, transaction histories for the accounts, all instructions, whether oral or in writing, relating to both accounts, and any other information required to verify the veracity of the funds.
The order makes provision for parties to challenge it, or to say whether they have an interest in the funds.
The preservation order follows allegations that Tegeta, which forms part of the Guptas’ Oakbay Investments, withdrew money from the accounts, and used some of it as collateral for loans, purportedly for mine rehabilitation.
The money is considered for now an “instrumentality” in an offence and the “proceeds of unlawful activities” due to alleged violations of the National Environmental Management Act (Nema), the Mineral and Petroleum Resources Development Act and the Income Tax Act.
In the application, it was contended that the money can only be used for rehabilitation once a mine is closed, and that there are tax deduction benefits when the rehabilitation fund is used for this.
However, there were allegedly drawings on the accounts and transfers to other accounts as mine business continued, allegedly used to improve Tegeta’s cashflow.
There was apparently no documentary proof of the supposed mine rehabilitation that the money was purportedly used for and any permissions granted by the DMR for the withdrawals were only “in principle”.
In the meantime, 19 Gupta-owned companies are seeking an urgent interdict against the Bank of Baroda to prevent it pulling out of South Africa.
Judgement, in that case, is still awaited.