The National Prosecuting Authority’s (NPA) preservation order against Optimum Coal Mine (OCM) assets is a final nail in the coffin of the workers who suffered at the hands of the Guptas’ shenanigans, the National Union of Mineworkers (NUM) will argue before the Supreme Court of Appeal (SCA) at a date still to be determined.
The NUM’s appeal seeks to overturn the preservation order of the Pretoria High Court, which was awarded to the head of the NPA, Shamila Batohi, in March last year.
The prosecuting authority persuaded the high court that the Guptas had bought Optimum Mines through proceeds of crime.
The high court appointed a curator to safeguard the OCM assets pending a forfeiture application within 90 days.
NUM argued the Guptas had caused more financial woes when their remuneration benefits were not paid to the workers in the period leading to the finalisation of the business rescue process.
The union, in its papers, argues the order granted to the NPA had spelled doom for the workers’ interests, and the renewed hope of continued employment, which the existing business rescue plan offered.
Poor workers, said the union, would lose out on the money they weren’t paid because of the Gupta’s criminal actions.
NUM also fingers the government, arguing it had failed to intervene and to use its authority to protect vulnerable workers, while Guptas’ nefarious practices brought the business to its knees.
“Many of them were compelled to cash in their retirement policies to sustain themselves and their dependants. During this time of despair, the state did not come to the assistance of the OCM employees,” read the court papers.
In a letter to NUM on March 3 last year, Batohi said she took note that the union would oppose the NPA’s court application, and this “because of its concern that the preservation and forfeiture relief sought by [her] will deprive its members of the rights they currently enjoy in the business rescue process”.
“We believe there is no reason for this concern to be a point of division between our respective clients,” she said, adding that her office didn’t want to sacrifice business rescue for preservation and forfeiture.
However, Batohi argued that “the current business rescue plan cannot be lawfully implemented” and would not be in the interests of NUM members.
“But [my] concerns about the implementation of the existing plan should not be conflated with the rejection of a business rescue process to restore the mine to full operation,” she said.
What Batohi was hoping to achieve, according to the letter, “is a process where the business rescue practitioners cooperate with the curator bonis [legal officer appointed usually by the master of the high court to administer assets or similar things until matter is settled] to find new buyers for the business of the mine. Through this process, the NDPP hopes to protect all the rights bona fide creditors and workers currently enjoy in the business rescue process but to realise a more appropriate value for the business of the mine,” she said.
Currently, the NUM stated in court papers, independent contractors operate mini-pit mining activities on the mine. But the prosecuting authority held a contrary view, saying that the arrangement was currently abused and benefited a small group of mini-pit operators.
NPA spokesperson Mthunzi Mhaga reportedly said: “The NPA has expressed its desire, once the mine is forfeited, to sell it in a transparent process so that the mine can start full operations as soon as possible.”
Pointing to Batohi’s letter, the NUM said she only sought to block the current business rescue plan, absent of any intention to follow up the preservation order with the mandatory forfeiture application.
NUM said Batohi could not rely on the Prevention of Organised Crime Act. “Poca is not a mechanism for the setting aside of a business rescue plan, nor does it afford the NDPP a right to oversee and veto the business rescue process”.
NUM said the continued operation of the preservation order would bring an end to the business rescue plan, cause the mine to collapse and result in the loss of thousands of jobs. The union said state organs must act within the remit of their powers. “The corollary is that a public body that abuses its public power to achieve a purpose other than that for which the power was conferred, acts with an ulterior purpose and violates the doctrine of legality.”
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