Justice delayed, justice derailed — acting judge's ‘litany of errors' in Nulane case dealt blow to accountability

Daily Maverick

2 days ago

An acting judge's misunderstanding of the law has, for two long years, delayed accountability for alleged State Capture. The high court judge's pronouncements unfairly embarrassed the National Prosecuting Authority (NPA) and demoralised courageous prosecutors fighting to restore faith in South Africa's justice system.
Thankfully the Supreme Court of Appeal (SCA) has now set aside the Nulane judgment. Stingingly, the SCA found that 'the acquittal of the respondents was unfair to the prosecution and compromised the administration of justice'.
Why is the Nulane case so important?
In 2022, a mix of officials and businesspeople shuffled into a cold Bloemfontein dock, facing charges of orchestrating a R25-million fraud. With this, the NPA brought its first State Capture case to trial. Although R25-million was a pittance compared with what the Guptas would later purloin, Nulane was a dress rehearsal for the later schemes.
The fraud itself appears glaringly obvious. In 2012, a Gupta-linked, foreign scrap metal company suddenly announced its intention to invest in an emerging farmers project in the Free State. Strangely, the foreign company insisted that a company it did not name must conduct a feasibility study first. Somehow, Nulane, owned by Iqbal Sharma, was appointed to that role.
Evidence showed how Free State officials set about manipulating procurement processes to falsely and quickly appoint Nulane as a sole supplier. The feasibility study simply was outsourced to Deloitte for just R1.5-million. Nulane merely slapped its logo on the final report and sent invoices to the Department of Agriculture. The money went to Nulane and R19-million then ricocheted through various Gupta-controlled bank accounts before being siphoned off to Dubai.
By the time the trial began, the Guptas had long fled South Africa. Smaller fish faced charges for PFMA breaches, fraud and money laundering. Despite evidence to the contrary, much of it common cause, the high court outright acquitted one of the accused and granted section 174 discharges to the rest. The high court declared that there was 'not an iota' of evidence to even answer. The acting judge excoriated both the prosecutors and police for presenting a 'lackadaisical' case. The documentary evidence amounted to 'zilch', the judge proclaimed. The investigation was a 'comedy of errors', a phrase the judge called 'the understatement of the millennia'.
This insult warrants scrutiny. Did the acting judge mean that no investigations across thousands of years, from Meletus's inquiries into Socrates, were more incompetently conducted than Nulane? Or did she mean the singular noun millennium, thus restricting her comparison to all the other bad investigations since January 2000?
Ironically, the high court's reasoning is now discredited on all these scores. The SCA judgment chronicles a litany of errors, misconceptions and misconstructions; some so basic as failing to apply the elements of fraud to the facts. As for the acting judge's finding that the documents proved 'zilch', the SCA found otherwise. The documents and money flows established a prima facie case of fraud and money laundering which the accused should have been called upon to answer. On 'zilch', the SCA remarked: 'The use of this colloquialism is unfortunate; it does not belong in a judgment.'
Thank goodness the State appealed. The stakes were high not only because the acquittals were wrong but because the high court judgment undermined extradition efforts. The collapse of Nulane led to the Guptas walking free in Dubai. The judgment also destabilised case theories for prosecuting other State Capture crimes. The court's position on accomplice witnesses, best evidence, common purpose and section 174 discharges created ripple effects that reverberate today. It is heard tell that the high court's errors emboldened magistrates in Free State courts to discharge other financial crime suspects with alarming ease.
When cases are lost, criticism of prosecutors is often merciless. Media outlets joined the chorus of social media condemnation. The otherwise astute investigative journalism platform amaBhungane released a video suggesting that Nulane prosecutors lacked sufficient skills for what should have been a slam-dunk case. Legal reporting guru Karyn Maughan proclaimed that the acting judge 'was absolutely justified in describing it as a comedy of errors'. Maughan said she would be 'absolutely amazed' if the State succeeded in its appeal application. It will be amazing to see an apology to the vilified prosecutors and SAPS investigator.
The media's ridicule compounded what was an intensely demoralising experience for NPA advocates Witbooi and Serunye and SAPS investigator Lieutenant Colonel Mandla Mtolo. How they managed to persevere despite such unfair criticism is hard to imagine. Of course every prosecution can be improved. But it was the fact that the judge had 'closed her mind to the evidence adduced by the State' that really prevented the NPA from advancing the State's case, as the SCA noted. The NPA's resilience deserves praise.
In this instance, the real issue lies not with prosecutors but with wiser case allocation. State Capture cases cannot be entrusted to judges susceptible to their own 'comedy of errors'. The NPA chief, advocate Shamila Batohi, has herself implored heads of court to appoint experienced judges to seminal matters. A similar hint rang out in Bloemfontein's quaintly dilapidated SCA courtroom B when State counsel, Nazeer Cassim SC, remarked that high-stakes cases should be assigned to judges capable of navigating complex legal terrain.
It was acting SCA Justice Cagney Musi (also Free State Judge President) who assigned the Nulane case to the acting judge who so badly mishandled it. As Justice Musi pored over his division's work, he must have regretted his decision. Wayward acquittals are a danger. They imperil South Africa's fragile hope of salvaging itself from ruin. Without the credible prospect of prison, South Africa's kleptocracy will only expand until the justice system is nothing but a laughable, hollow threat. One can only but agree with the SCA's finding that the way the high court trial was conducted 'can be summed up in a single sentence: This was a failure of justice. Regrettably, this erodes public confidence in the criminal justice system.'
This critique is not about singling out a judge any more than a judge singled out police and prosecutors. Rather, Nulane serves as a lesson in how mistaken opinions, judicial and public, can delay accountability and demoralise those tasked with wielding justice on society's behalf.
Nulane also forces us to confront larger questions. 'How many other Nulane judgments are out there?' This is a troubling question. Much like the temperature this week, the standard of acting appointments has, by all accounts, been plummeting for some time. This phenomenon is so noticeable, it has crept into techniques of civil litigation. No matter how strong a party's case may be, many are induced to take a puny settlement rather than risk the potluck of the court roll.
Yet this should not be so. High court trials carry huge social stakes. They're not a CCMA con-arb or housebreaking case. It's all very well to develop lawyers or magistrates by gifting them an acting stint. However, acting judges still need to be drawn from an intellectual and professional elite. A deep, nonracial strata of legal excellence exists in South Africa. Many inspired acting appointments are routinely made and these represent the breadth of legal talent in South Africa, so this is not a 'transformation' issue. The problem is the almost back-of-the-envelope selection of adjudicators we see sometimes.
The 'proletarianisation' of the Bench is a threat to the state's legitimacy. The goals of inclusion and professional development must be tempered by a primary duty to select judges capable of deciding cases competently. This is the essence of the 'fair public hearing' promise the Constitution contains. It is especially hard for poor and already marginalised litigants to fix the damage made by learner-judges on appeal.
As things stand though, NPA prosecutors have been vindicated by the SCA. Nulane also teaches judges and commentators alike to be less star-struck by defence counsel and their adamant speeches and charming tutelage. A careful examination of the record, not only snippets of the argument or judgment, will often reveal that less-flamboyant career prosecutors have indeed made out a case, at least to warrant the accused mounting a defence.
Shakespeare's Hamlet lamented the law's delay and the insolence of office. Thankfully, the SCA has set matters right, for now. The NPA can do better but so can the judiciary. South Africa cannot afford further derailments in its pursuit of justice against the greedy stokers of our ruin. DM