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SCORPIO
SCORPIO
NPA ON HIGH ALERT AS BUSINESS RESCUE PRACTITIONERS PLOT COAL EXPORTS FOR
GUPTA-OWNED OPTIMUM
From left: Atul Gupta. (Photo: Gallo Images / Financial Mail / Robert
Tshabalala) | Tegeta’s Ronica Ragavan. (Photo: Gallo Images / Beeld / Felix
Dlangamandla) | (Photo: Simon Dawson / Bloomberg via Getty Images)
By Jessica Bezuidenhout for Scorpio
Follow Following
16 Jan 2022
Follow Following
8
THE BUSINESS RESCUE PRACTITIONERS OF OPTIMUM COAL APPEAR TO BE PUSHING FULL
STEAM AHEAD WITH COMMERCIAL AGREEMENTS THAT ENTRENCH A DEBT-TO-EQUITY TAKEOVER
BY A FORMER GUPTA BUSINESS PARTNER. THIS IS DESPITE THE NPA’S APPLICATIONS FOR
PRESERVATION ORDERS RELATING TO THE ASSETS PENDING BEFORE THE HIGH COURT.
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BeyondWords
The business rescue practitioners (BRPs) and the company lined up to take over
the Gupta family’s Optimum Coal business have been gearing up for exports via
Richards Bay Coal Terminal (RBCT).
This is despite the National Prosecuting Authority breathing down their necks
with high court applications under the Prevention of Organised Crime Act (Poca),
and ironically with initial backing from Transnet. The state-owned company and
one of its pension funds, the Transnet Second Defined Benefit Fund, were
allegedly milked to help the Guptas pay for Optimum just more than six years
ago.
A DAILY ROUND UP OF THE WORLD OF BUSINESS, WITHOUT ANY OF THE BULL.
LET TIM COHEN PUT THE MARKETS INTO PERSPECTIVE, DIRECT TO YOUR INBOX EVERY
WEEKDAY AT 19:00.
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Flowing from this, the Investigating Directorate of the NPA filed two
applications for preservation orders in December 2021. One was to secure the
Gupta shares in Optimum on the grounds that it was bought with the alleged
proceeds of crime. The second application was to take hold of a R1.3-billion
creditor claim that is now paving the way for former Gupta business partner
Daniel McGowan’s Liberty Energy to acquire Optimum through a debt-to-equity
deal.
> NPA’s Hermione Cronje launches a double strike on Gupta Inc’s dirty Optimum
> Coal deal
The NPA contends the takeover deal will result in the BRPs committing a
money-laundering offence and wants a curator to oversee them.
The applications are set down for March 2022.
Details of the export deal, initially scheduled to start on 16 January 2022, are
contained in court papers submitted in a separate urgent application filed by
the directors of the Gupta-owned Tegeta Exploration and Resources. The BRPs of
Optimum Coal Terminal (OCT) published a rescue plan in late October 2021 that
would have been voted on at a section 151 meeting.
But on 9 November 2021 Tegeta directors, led by Ronica Ragavan, obtained an
urgent interim interdict preventing them from convening a meeting pending the
outcome of a second part of their application.
> Ronica Ragavan: ‘A devotee, glorified secretary and Madam Fix-It’
The second part, partly to determine who may vote on that OCT rescue plan — the
BRPs or the directors of Tegeta — was heard in the High Court in Johannesburg on
Friday, 14 January 2022 and judgment is scheduled to be handed down on Tuesday,
18 January 2022. Adoption of the OCT plan is a critical condition for the final
implementation of the Optimum Coal Mine (OCM) business rescue plan in terms of
which Liberty will acquire the business.
Liberty, in response to the Gupta group’s urgent application, filed an affidavit
roughly five days after the NPA’s preservation applications went to court in
December last year.
In it, the company’s CFO, Ulrich Bester, said Liberty stands to suffer a direct
and substantial loss if the OCT plan is not approved by mid-January 2022. He
said Liberty had taken cession of a R95-million RBCT creditor claim in OCT on 10
November 2021, and believes it became the largest creditor in OCT in the
process.
On the back of that cession, RBCT agreed, Bester said, to permit coal exports
using OCT’s slot allocation for roughly eight weeks, until the end of March
2022.
Bester said this was conditional upon the OCT plan being adopted and,
importantly, on Transnet agreeing to provide the company with rail facilities.
He said an agreement had been “concluded” with Transnet. The Transnet factor
appears to have complicated things for both Liberty and the BRPs.
Roughly 24 hours before the case came before Judge Margaret Victor on Friday, 14
January, Ragavan responded to Bester’s affidavit, and rather ironically
questioned how Transnet could have done such a deal. Ragavan said it would be
“truly remarkable “for Transnet to have entered into such an agreement given the
NPA’s case of alleged illegality around Optimum and Liberty’s takeover bid.
> ‘It would amount to the State perfecting the very crimes which it alleges will
> be committed if the OCM and OCT plans are performed,’ Ragavan said.
Ragavan had taken issue with the fact that the Transnet agreement, referred to
by Bester, was not put before court.
Bester later set the record straight when he said that at the time of filing his
initial affidavit he had been advised that the rail deal with Transnet was a
done deal. It turns out that Transnet, although having negotiated with the
company to a fairly advanced stage, had not signed.
An affidavit by Bouwer van Niekerk, attorney for the BRPs, suggests that
negotiations for the rail deal date back several months before the NPA’s
preservation applications went live.
The Tegeta team came under attack from counsel for the BRPs, who accused them of
being “puppets” of the Guptas, who are out to use the NPA’s case to shore up
their own. They maintain the NPA’s Poca applications have no bearing on this
case and that Tegeta’s case is just a continuation of tactics adopted once they
realised the BRPs would not simply dance to their tune.
State Attorney’s no-nonsense letter
If the Guptas are successful in this court case the NPA need not be too
concerned just yet, as it will aid its own efforts to delay conclusion of the
OCM business rescue plan until its preservations applications are heard.
But, should Tegeta lose at court and the interim interdict is discharged, the
NPA will have to swing into action immediately.
Details of its battle plan are contained in a scathing letter the State Attorney
allegedly sent to the BRP’s attorneys on 10 January 10.
Ragavan slipped the six-page document into the court record. It was not
accompanied by a confirmatory affidavit from the author and the BRPs were
extremely unhappy because they say they had not received it from the State
Attorney.
Writing on behalf of the NPA, the State Attorney’s office put the BRPs on terms
by seeking an undertaking that they will not proceed with the implementation of
the OCM business rescue plan until the NPA applications are heard in March.
Lawyers for the BRPs had seemingly previously told the NPA it would be premature
to provide an undertaking that they would not implement the Optimum rescue plan,
but they have now served notice of their intention to oppose the preservation
application.
The letter states that the NPA intends to bring urgent interim preservation
proceedings if the Gupta interim interdict is discharged and should it be
necessary, another urgent interdict to block the BRPs from convening an OCT
creditors meeting.
It also questions the accuracy of claims that a rail transport deal had been
struck with Transnet as Liberty had claimed.
The BRPs had “proposed” a long-term agreement, but this was not signed, it
states. “Transnet is an organ of State with particular duties in relation to
dealing with counterparties who have benefited from the proceeds of crimes
against other organs of State.”
And Transnet, the letter says, was the primary victim of State Capture on the
part of the Guptas.
Extremely rushed responses to the letter filed by Van Niekerk and Bester on
Friday suggested the agreement with Transnet, while not signed in the end, had
been negotiated over several months dating back to at least June 2021. In fact,
Van Niekerk states that the BRPs had signed an executory version of the contract
in September 2021 and believed it was a mere formality for Transnet to sign.
Transnet had also signed “an interim” agreement as recently as 4 November 2021,
Van Niekerk said.
Wrapping up the NPA’s argument on this, the letter states: “Whatever the
situation may have been before, Transnet is now fully aware of the NPA’s case
and there is now no meaningful prospect that it would do a deal designed to
facilitate Liberty’s takeover of Optimum on the back of proceeds of State
Capture crimes against Transnet itself, the pension fund, and other organs of
State.” DM
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COMMENTS - SHARE YOUR KNOWLEDGE AND EXPERIENCE
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All Comments 8
* Allauddin Thobani says:
17 January 2022 at 09:32
Minister of Justice requires to intervene and suspend the BRT – liquidators
immediately as the Master of the High Court fail to act as BRPs committing a
money-laundering offence.
Log in to Reply
* Charles Parr says:
17 January 2022 at 10:21
I like the headline ‘NPA on full alert ….’. Does that mean that they’re
sitting up straight in their chairs?
Log in to Reply
* Coen Gous says:
17 January 2022 at 15:04
…or in their beds….! Charles, I really think we must give the NPA some
space. I cannot fathom for one moment how difficult it must be for a top
quality prosecutor in the NPA to work under the strain of reporting to a
government that tries their utmost to ensure the NPA is not functioning
properly. Simply to protect so many of the ANC’s senior members implicated
in numerous crimes. The most recent case of the News editor at the SABC is
heart-breaking, because she is standing up to intimidation from the ANC,
her Chairman (women) and the CEO.
Log in to Reply
* Charles Parr says:
17 January 2022 at 21:23
Yes, I agree we need to give them some space but we’re seeing very little
success. They seem to be all over the place and I’m convinced it’s more
of a management problem than a competence problem. Let’s face it they
haven’t charged Zuma with one offence during his presidency because
they’re still battling with the issues before he was president. They need
to get some small wins just to get some confidence.
Log in to Reply
* Joe Irwin says:
17 January 2022 at 16:55
The NPA on full alert!!! Now that has to be a first for the last decade.
Log in to Reply
* virginia crawford says:
18 January 2022 at 06:19
But what does it mean? That they are ready to pounce? Not much pouncing
so far…..
Log in to Reply
* Rory Macnamara says:
17 January 2022 at 12:49
when will SA learn to draw the line? surely the NPA’s court submission must
overrule the BRT or are the latter allowing to just carry on regardless?
Log in to Reply
* Sheda Habib says:
17 January 2022 at 13:17
Our roads are messed up on every route that the coal trucks take.
These routes used to be covered by railway and conveyor systems.
We need to ensure that these trucks, mostly overloaded and taking back routes
to avoid detection refund our revenue departments with sufficient funds to
repair the roads.
On chatting to a driver recently he told me it is cheaper to bribe his way
through the system than to load the correct weights.
So much for our roads, SAA and Transnet are bankrupt…….and our roads in a
state of almost total disrepair.
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