Judge misapplied law in acquitting and discharging accused in Nulane state capture case: NPA

The National Prosecuting Authority (NPA) suggested in the Bloemfontein high court on Friday that an acting judge in the first state capture case misapplied the law in rejecting the bulk of the evidence presented.

The NPA's Investigating Directorate (ID) is attempting to salvage the high-profile case.

The state's case in the Nulane R24.9m fraud and money laundering case suffered a blow when acting judge Nompumelelo Gusha ruled most of the documentary evidence submitted by the state is inadmissible, which led to the acquittal of the accused.

Gusha said the state failed to authenticate copies of documents handed in as evidence to the court.

The case relates to an alleged corrupt tender in which money was paid to Nulane Investments, owned by Iqbal Sharma, to conduct a feasibility study for the Free State’s Mohoma Mobung project on the basis that Nulane had unique skills to perform the work.

Gusha upheld a section 174 discharge application by six of the seven accused and acquitted the other, Limakatso Moorosi, former head of the Free State agriculture department. The other respondents are:

• Peter Thabethe, former head of the Free State rural development department;
• Seipati Dhlamini, former provincial agriculture department CFO;
• Dinesh Patel, Sharma’s brother-in-law and a representative of Nulane Investments; and
• Islandsite director Ronica Ragavan.

The companies indicted are Nulane Investments 204 and Islandsite Investment 180.

In court papers, the ID argued the court wrongly applied law “on the best evidence rule” and may have “not exercised its discretion judicially or that it had been influenced by wrong principles”.

“It is common cause that this search [for original documents] took place nine nine years after these documents were created,” the ID said.

Two searches were conducted on two occasions and only copies of the contract between the department and Nulane Investments could be found.

Free State agriculture department head Takisi Masiteng testified the department moved offices during 2012-2013, the ID said.

“He [Masiteng] stated departmental documents had been packed and transported by a private moving company and this had subsequently caused confusion as to the whereabouts of departmental documents.”

The ID argued the court also erred in respect to its application of common purpose as it “wrongly expected the state to prove prior agreement between the parties or that they knew each other”.

“The learned judge in her judgment wrongly rejected the evidence of section 204 [indemnity] witness Shadrack Cezula on the basis that his evidence does not evince that there was any prior agreement between him and any of the accused and/or a decision to act in concert with any of the accused to defraud the department,” the ID said.

In her April judgment, Gusha tore into the prosecution's star witness Cezula.

Cezula authored the deviation document used to grant Nulane R24.9m for a feasibility study without it being put to tender.

“Taking into account that a little more than R24m of taxpayers' money was at stake, the lackadaisical manner in which this matter was investigated is truly to be lamented,” Gusha said.

She accused Cezula of being an evasive witness who “at best” admitted to contravening the Public Finance Management Act, though he had been offered indemnity from fraud.

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