Batohi’s untested Zondo evidence useless in Optimum forfeiture case

The National Prosecuting Authority’s (NPA’s) Optimum Coal Mine (OCM) forfeiture bid relies heavily on untested statements provided to the state capture commission of inquiry that merely constitute hearsay, with no evidence of facts.

This is according to OCM creditor Daniel McGowan, whose company, Liberty Coal, was on the verge of taking full control of the running of the lucrative mine in Mpumalanga when the National Director of Public Prosecutions (NDPP) Shamila Batohi suddenly accused him of being a Gupta stooge and approached the court to attach the mine as proceeds of crime.

McGowan told the court in the forfeiture dispute that Batohi’s version was a scheme to discredit him and his company by linking them to the Guptas – who owed his holding company, Templar Capital, about R1.3-billion.

Batohi wants to place the coal mine on auction to the highest bidder, and critics suggest the intention is to give the mine back to politically connected big miners. The Guptas elbowed President Cyril Ramaphosa-linked Glencore to take the mine over in 2016.

OCM came under voluntary business rescue in 2018, and the approval of a business rescue plan was a key condition in finalising the sale of the mine to Liberty Energy, the owner of Liberty Coal. Other OCM creditors had agreed to the plan, including Eskom, which suddenly changed tack when Batohi stepped in.

McGowan said in an answering affidavit at the Pretoria High Court, dated June 20, that Batohi’s alleged evidence was not properly tested, and a number of people implicated in her forfeiture applications had never been afforded a proper opportunity to be heard, even before the commission led by Chief Justice Raymond Zondo.

“The oral and written evidence (statements, affidavits, or documents) that was tendered before the Zondo Commission was not subjected to interrogation or cross-examination. Where it was, that was not for the purpose of defending the allegations, accusations, and contentions that the NDPP posits or prosecutes in the present applications,” McGowan said.

He said evidence before the Zondo Commission, and the commission’s conclusions and recommendations, were hearsay in these proceedings, and Batohi did not even suggest that the evidence was procured in the course of the NPA’s Independent Directorate’s investigations.

“I thus never had a meaningful opportunity to test or challenge the evidence placed before the Zondo Commission. The Zondo Commission also did not call me to answer questions or testify before it – so it had no insight into my version of events at all.”

McGowan said he voluntarily approached the NPA in August 2021 to address any inquiries in relation to Liberty’s proposed acquisition of the business of OCM. He said Batohi was selective in her use of the information provided to the NPA and misused or mischaracterised it to imply a greater relationship between him and the Gupta family than it existed.

In addition, he said that some of the persons who Batohi directly implicated, gave evidence before the Zondo Commission, but she failed to disclose their version to the court, citing as examples former Eskom executives Brian Molefe, Matshela Koko and Anoj Singh.

He said Batohi did not have to accept the veracity of the evidence she excluded, but she was obliged, at a minimum, to fairly disclose and engage with it in her papers, to allow for the case, as a whole, to be properly considered and assessed.

“The NDPP ought at least to have given an account of the countervailing evidence disclosed during the Zondo Commission and its further investigations, and explained why such evidence was so unbelievable as to be dismissed out of hand, and without interrogation by this court.”

McGowan said the approach was critical, particularly where the court was obliged to determine a case for forfeiture by relying heavily on inferences that Batohi drew from her partial version of events. “The NDPP asks the court to make the same inferences that she does – but without also disclosing to the court all of the relevant facts that weigh against those imputations.”

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