Iqbal Sharma, the head of Nulane Investments and accused number four. (Mlungusi Louw/ Volksblad/Gallo Images)
A pre-trial hearing in the Nulane fraud case — where the state is seeking the extradition of Atul and Rajesh Gupta — has been postponed until later this month for the high court to hear an application by their associate Dinesh Patel for better particulars of the charges he faces.
Patel’s interlocutory application will be heard on 27 September, after Judge Martha Mbhele noted that the defence had failed to paginate its papers. Patel is also expected to argue for a relaxation of his bail terms later this month.
His application was filed earlier this week in terms of section 87 of the Criminal Procedure Act. The state, in its reply, said the application could not be described as worthy and genuine.
The voluminous exchange of papers thus far has seen the defence ask, relentlessly, that the state furnish the accused with the exact time and place as well as the manner in which they are alleged to have colluded to defraud the Free State of R24.9-million in a bogus feasibility study that set up the Estina dairy farm scam.
The prosecution conceded that it cannot do so.
But neither does it have to in order to charge and convict the accused in terms of the doctrine of common purpose, since the court could infer that they all associated themselves with the aim of extracting the money for the benefit of what it terms “the Gupta enterprise”.
It has argued that all accused, including the Gupta brothers and their spouses, actively associated themselves with an unsolicited letter sent to the Free State government that led to Nulane Investments being appointed to conduct the study that in turn saw Estina given the dairy farm tender.
Nulane was headed by former Transnet board member Iqbal Sharma, who is now accused number four in the case.
Patel worked for Nulane and signed contracts with the Free State department of agriculture on its behalf, as well as a sub-contract with Deloitte to perform the actual work required — at a fee of R1.5-million. According to the state’s latest papers, he was in charge of the negotiations with Deloitte which led to the outsourcing of the contract at a fraction of the price.
The rest of the money paid over by the department was transferred back and forth between Nulane Investments and several companies, two of which were controlled by Atul Gupta. The money flow, the National Prosecuting Authority (NPA) said in its founding affidavit, illustrated the centrality of Islandsite in the family’s money-laundering operations.
In its reply to Patel’s 70-page application, the prosecution notes that the CPA demands that “a charge shall set forth the relevant offence in such a manner and with such particulars as to the time and place at which the offence is alleged to have been committed as may be reasonably sufficient to inform the accused of the charge”.
But, it said, the Act allows that where these particulars are unknown to the state “it shall be sufficient to state that fact in the charge”.
The state said it had done so again in a 149-page submission filed last month, where it noted that there is nothing to be done about the fact that its reliance on the doctrine of common purpose did not appear to please the accused. Nor does it render the indictment defective.
It reiterated this week that liability by common purpose does not require the prosecution to prove every participant’s conduct which contributed to the crime ultimately under consideration before the court. Further particular, it reiterated, will be submitted as evidence in the trial.
“The doctrine of common purpose is part of our law. There is nothing wrong for the state to rely on the said doctrine to prove its case where the available evidence shows that the perpetrators actively associated themselves with each other’s conduct in committing the offence.”
It added that Patel and his co-accused had the benefit of an indictment, a summary of substantial facts, the names of witnesses who will be called and a copy of the police docket.
Demanding more, beyond the prosecution meant that he was seeking to drag the court into debates about the merits of the case, which the state would not entertain at this stage.
Patel’s papers sought to dismiss the state’s heads of argument as “a meaningless discourse”.
The response to this was that: “The state will not be drawn into debates about the merits of the case at this stage.”
In a broadside, it accused the defence of poor lawyering, saying that papers filed earlier appeared to have the benefit of a lawyerly eye which Patel’s did not.
The trial is set down for 23 January. For now, Atul and Rajesh Gupta remain in custody in Dubai, where they were arrested on 2 June and are expected to face an extradition hearing in coming weeks. According to sources, Emirati law enforcement agencies are considering the request.
The NPA has declined to say whether it is still seeking the surrender of their spouses but confirmed that the extradition request for the Gupta brothers alludes to future charges relating to the Estina scandal.