NPA files application to appeal against Nulane judgment, saying court 'erred'

The National Prosecuting Authority's (NPA) Investigating Directorate (ID) has filed an application to appeal against the recent judgment in the Nulane Investments R24.9m fraud and money-laundering case which saw the accused discharged. 

The ID argues there are reasonable prospects another court would find acting judge Nompumelelo Gusha erred by making contradictory rulings which prejudiced the state regarding the issue of the admissibility of documentary evidence. 

On April 21, the Free State High Court in Bloemfontein discharged six of the accused in terms of section 174 of the Criminal Procedure Act, while the seventh accused was acquitted.  

The ID said its appeal application is also based on the February 23 verdict that rendered key documents and exhibits provided by the state inadmissible as evidence against the accused.   

Among other errors, it said, it believes the judge erred by discharging the seven accused in circumstances where the state had presented prima facie evidence on which a reasonable court might convict.

“There are reasonable prospects that another court would come to a different conclusion and/or find that granting the discharge was a misdirection which was contrary to legal precedent, constituted a gross irregularity in the trial and was prejudicial to the state,” the ID said in a statement. 

Other grounds for appeal listed by the ID include:

• That the judge erred by deviating so drastically from the parameters of the test for a discharge in terms of section 174 of the act that a miscarriage of justice occurred in that the accused against whom a prima facie case had been made were acquitted “without having been put to their defence”.
• It is submitted to be trite law that the section 174 inquiry does not entail a finding being made as to whether the evidence of the state at this stage is plausible or constituted proof of guilt beyond a reasonable doubt.
• The judge erred by concluding in her judgment that the state failed to pass even the barest threshold and that an application for discharge cannot be refused in the hope that the accused people will incriminate themselves when they give evidence, thereby closing material defects in the state’s case. There are reasonable prospects that another court would find that the evidence presented before the court by the state called for a reply and that the accused should have “been called upon to discharge their evidential burden”.
• The judge erred in her interpretation and application of the ‘best evidence rule’.
• The judge erred in her interpretation and application of the law relating to the cautionary rule, section 204 of the act, the assessment of the evidence of the section 204 witness and in the credibility findings made against the section 204 witness.
• The judge further erred in her interpretation and application of the doctrine of common purpose (collusion and conspiracy).
• In ruling that the state had failed to pass the barest evidentiary threshold, the judge found “the state did not prove any common purpose between the accused”. There are reasonable prospects another court would find accused 1, 2 and 3 were acting in furtherance of a common purpose with the other accused and Shadrack Cezula.
• The judge erred during the section 174 judgment in finding that Siphiwe Mahlangu’s evidence did not serve as authentication on the disputed documents “since he was neither the author thereof nor was he present when same were either authored or had signatures appended thereto”.
• There are reasonable prospects another court would find the judge erred by making contradictory rulings which prejudiced the state when dealing with the issue of the admissibility of documentary evidence.

Former Free State agriculture head Limakatso Moorosi, who did not apply for a discharge, was acquitted by Gusha, while her co-accused were discharged. They are:

• Gupta associate Iqbal Sharma;
• Peter Thabethe, former head of the Free State department of rural development;
• Seipati Dhlamini, former provincial agriculture CFO;
• Dinesh Patel, Sharma’s brother-in-law and a representative of Nulane;
• Islandsite director Ronica Ragavan; and
• Nulane Investment and Islandsite as entities.

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