Five years after the former public protector Thuli Madonsela released her State of Capture report detailing how Tegeta Resources, a company owned and controlled by members of the Gupta family, acquired Optimum Coal Holdings from Glencore for R2.1 billion, the Investigating Directorate (ID) on Wednesday filed two related court applications to recover the stolen funds.
The respondents were served the application on Thursday.
The High Court in Johannesburg will hear the preservation application on 8 March 2022, said the ID in a statement.
In the first application, the ID seeks to preserve all of Tegeta’s shares in Optimum Coal Mine (OCM), all of Tegeta’s shares in Optimum Coal Terminal and the business of OCM.
The ID argues that all of these assets were acquired with the proceeds of crimes perpetrated against South African SOEs, including Transnet and Eskom.
“A month prior to Tegeta furnishing the purchase price, the company did not have the R2.1 billion to purchase the mine. However, shortly thereafter funds from Gupta controlled entities Oakbay Investments, Albatime, Centaur mining amongst others were transferred into Tegeta’s account as loans,” argues the ID.
In its application, the ID seeks to persuade the court that officials employed by Eskom allegedly fraudulently and caused Eskom to make a prepayment of R659.558,079.38 million to Tegeta on 13 April 2016.
This pre-payment, according to the ID, was allegedly fraudulently presented as necessary to ensure the supply of coal to Arnot power station when its true purpose was to avail Tegeta of the purchase price for Optimum.
“A further R104.500,000 paid over to Tegeta as loans from Albatime and Trillian can be traced to funds stolen from the Transnet Second Defined Benefit Fund (TSDBF) by Regiments Fund Managers (Pty) Ltd on 4 December 2015, and an amount of R93.400,000 tainted by fraud and corruption paid on 4 December 2015 by Transnet to Trillian Asset Management ostensibly as fees arising from the R12bn ‘Club Loan’.”
According to the ID, these funds were allegedly laundered through Albatime and Trillian and made available to Tegeta as loans.
“In October 2021 Kuben Moodley of Albatime was arrested, before embarking on a trip to Dubai, on charges related to these offences. He is expected to appear in the Palm Ridge Specialised Crimes Court on 28 February 2022.”
The second application is brought against a Bermuda company called Templar Ltd, an international investment firm and the largest independent creditor in Optimum Coal Mine. The Templar claim is valued at approximately R1.3 billion.
The ID argues that the funds underlying the Templar claims are funds that were advanced by the Gupta family Dubai Company, Griffin Line Trading LLC, a company nominally controlled by Ajay Gupta’s son, Kamal Singhala.
“Daniel McGowan the owner of Templar, has himself stated under oath that the funds advanced by Griffin Line derived from ‘money stolen from the South African government and laundered via Mr Singhala on behalf of his father and wider family members’.”
With the two applications, the ID seeks to have forfeited to the state, the proceeds of one of the primary criminal schemes linked to State Capture.
The NDPP is seeking an expedited hearing of the matter before 28 March 2022, the deadline for implementation of the OCM Business Rescue Plan.
“The preservation application is necessary to prevent the business rescue process from being abused to legitimise the proceeds of crime. The goal is to ensure a fair open and competitive sale of the mine, in the interest of the mine workers, creditors and the broader public.”
Notice was given to all the respondents to file answering affidavits on or before 10 January 2022 and file answering affidavits by 28 January 2022, showing why the assets acquired by the Guptas and their associates should not be preserved and later forfeited to the State.