NPA gets a bloody nose from acting Judge Gusha while Magashule smiles from a distance

From Left to Right: Ace Magashule, Mxolisi Dukwana and Thabo Meeko
Staff reporter

Bloemfontein- Questions and pressure is mounting in the National Prosecuting Authority (NPA) over how it’s handling the first state capture case linked to the R25m Estina Feasibility study and whether it has competent staff.

Dubbed the precursor of the big Estina Dairy Farm in which millions were paid to the Guptas the trial was scheduled for 6 weeks but on the 20th day the wheels started coming off faster than we thought.

The state charged Nulane Investment, Islanders, their directors, and former government officials for fraud and money laundering.

At the center of it, the state alleged the tender was irregularly awarded to Nulane Investment and they were paid R24.9m to do a feasibility study despite the company not having capacity, Nulane then contracted Delloitte for the job and paid them R1.5 million.

The rest of the money according to the state was deposited into different accounts linked to the infamous Gupta family.

The state case was led by Hawks colonel Mandla Mtolo with Shadrack Cezula department of agriculture as a witness among others.

It was a trial within a trial where #GuptLeaks were borne of contention and when the judge ruled the emails can’t be admitted in evidence after Mtolo cracked the previous days, the writing was on the wall.

Out of all documents, only two were originals the rest were photocopies and acting judge Nompumelelo Gusha delivered blows in her judgment over the admissibility of #GuptaLeaks.

BACKGROUND
The state’s application for (provisional) admission, reliance on a provision about hearsay evidence.

Vehement opposition, the state had not laid a basis for the introduction, the authenticity of some if not all placed in issue.

Rule the disputed documents be provisionally admitted into the record, on the provision that the case would lead evidence, tender evidence dealing with originality and authenticity thereof.

“Needless to say, save for the documents admitted into the record as TJM13 which is the Nulane tax invoice dated 12 March 2012 for the amount of R8,328,080, TJM11 the sundry payment dated 29 March 2012, and the attendant allocation document for the payment of R5-million which on the face of it appears to have been altered and, or inscriptions made thereon after the fact, as well as TJM12 the transaction log sheet dated 28 March 2012 and compiled by Ms. Motshumi which also on the face of it appears to have been altered and, or inscriptions made thereon after the fact all other documents relied upon by the state were and remain copies even at the closure of the state’s case.”

She was not done.

“With regards to exhibits TJM 11 to 13 insofar as they appear on the face of them to be originals I now rule they are admissible with the only issue remaining for determination being what weight if any is to be attached to these documents during the evaluation of the conspectus of the evidence.”

About Shadrack Cezula the judge said.

“The same aforesaid conclusion is reached with regards to the Cezula acting appointment documents and the deviation submission he compiled.
The same goes for the copies of BAS repayments and stubs insofar as they are computer printouts. Albeit these documents are also copies Cezula being the author of the deviation submission testified as to the contents and authenticated his signature.”

“Even if it were to be successfully argued that I somehow misdirected myself on this aspect the fact remains that these documents prove only the contents and not the veracity of what is contained therein. Thus, the probative value thereof is a matter to be determined when the evidence is evaluated in its entirety.”

“As already alluded to all other documents provisionally admitted into the record remained copies even after the state closed the case without the state tendering into evidence the originals thereof.”

“Throughout the case for the state, the central theme was that the originals of the disputed documents were either lost during the relocation to the Glen college of agriculture or that despite a diligent search same could not be located.”

“Having carefully considered the evidence tendered so far I am not satisfied that the originals of these documents are either lost or that a diligent search was conducted. Nothing in the evidence presented by the state suggests that a bona fide and, or thorough search for these documents was conducted.”

“Most of the witnesses for the state when confronted with the whereabouts of the originals simply pled ignorance and those who ventured to proffer an opinion fell back on the Glen relocation.”

“The rationale for the originality rule is palpable to avoid error and falsification. It is for that reason that the mere say-so of the officials that the documents are lost and, or that despite a diligent search the originals could not be located will not suffice. Especially in the absence of any demonstrable evidence before the court of such diligent search.”

“When the authenticity of documents is placed in issue as is in this case the rules to prove the same is trite and need no restating here. In this regard, too, the state’s case, unfortunately, suffers the same misfortune and does not pass muster.”

“All the evidence they sought to rely on to prove the authenticity came to naught (save to the evidence of Mr. Cezula to the effect that he was present when accused three allegedly appended her signature on the deviation submission, which is a matter of evaluation) none of the witnesses who testified were present when the signatures on the documents were allegedly appended, no handwriting expert evidence was adduced to authenticate said signatures.”

“With regards to those documents whose purported authors testified during these proceedings even they did not authenticate the very documents they authored as those by their evidence were altered.

In this regard, the Deloitte report comes to mind as well as the respective evidence of Ms. Motshumi and Mr. Thubisi.

Accordingly, all the other copies of the documents sought to rely upon by the state are now with the benefit of having regard to the evidence leading up to this point ruled inadmissible.”

With this, the state has seemingly lost the case and all accused are seeking acquittal, one person who is smiling the most is none other than the suspended former Secretary General of the ANC, Ace Magashule who is an accused in a separate case and his legal team is likely to pull the same stunt and argue the state is reliant on the evidence of the State Capture Commission and apply for the evidence not be admitted.

Should he be acquitted, it will be interesting to see how he works with as beneficiary of a Gupta money.

This is a developing story.

If you have news or tips please email news@stepupsanews.co.za or WhatsApp 0685000246