In another successful court bid by the Guptas, assets seized from the family and their business associates have been ordered returned — mainly because the state's case was found to be flawed.
What will be more worrisome for the state, is that courts think there are so far no reasonable grounds to believe that the Guptas and their partners may someday be convicted of the crimes of which they stand accused.
On Monday, the High Court in Bloemfontein ruled in favour of Gupta-linked companies and individuals who challenged a provisional restraint order to freeze their assets, which amount to about R200-million. In handing down the order, judge Philip Loubser said there were no reasonable grounds to conclude that the eight people arrested in relation to the Estina dairy project should have their assets frozen.
Here is why the Guptas and their associates are getting their assets back:
- Shaun Abrahams left out crucial documentation.
Loubser found that a crucial affidavit explaining the mechanics of the Gupta's Bank of Baroda account — a pool account into which monies acquired from the Free State government for the Estina project were transferred — were not included in the papers filed by the National Director of Public Prosecutions (Abrahams).
Also, a transcribed copy of a previous judgment handed down by judge Fouche Jordaan in March, which overturned the freezing of R10-million in Atul Gupta's personal bank account, was also not attached to the founding papers.
"Had the two items been placed before me from the outset, they could have influenced my decision to grant the provisional order materially," Loubser said.
- There is just not enough evidence.
The Free State government paid millions into Estina's account at Standard Bank. This was then transferred into a pool account — which houses the finances of dozens of Gupta-linked entities — at the Bank of Baroda. It is alleged that money from the pool account found its way to other Gupta entities, including Oakbay.
"It appears to this court that there is much to be said for the criticism levelled at the case advanced by the NDPP, and that the evidence relied on by the NDPP shows many shortcomings that remain unexplained at this point... Among the shortcomings, we find the uncertainty surrounding the pool account of the Bank of Baroda, and the possible veracity of the repayment of loans, as relied upon by the applicants. The present inquiry is not dependent on a finding upon the veracity of the evidence against the applicants. It is also not dependent on any suspicions... The court cannot merely rely on the opinion of the NDPP," the judgment found.
There was not enough supporting evidence to show that monies transferred to Oakbay from the pool account emanated from the Free State government and Estina.
"Nature of evidence shows inter alia that it cannot be established that the monies paid to Oakbay flowed from the Estina deposits and not from the other deposits," Loubser said.
"The fallacy underlying the allegation that amounts were received from Estina lies in the fact that the identity of funds from the pool account cannot be identified."