In seeking to overturn the proclamation authorising a probe into corruption at the National Lotteries Commission (NLC), former NLC boss Alfred Nevhutanda is trying to avoid accountability and to “retain the proceeds of his corrupt conduct”, the Pretoria High Court has been told.
Special Investigating Unit (SIU) Chief Forensic Investigator Tsholofelo Mkise has filed an affidavit opposing Nevhutanda’s legal challenge to the proclamation signed by President Cyril Ramaphosa authorising the SIU to investigate.
Mkise says Nevhutanda’s contention, that the proclamation was unlawful because the NLC was not a “state entity” which dealt with “public money” as he claimed were required by the SIU Act, was not correct “at the level of logic and law”.
She says the NLC, the distribution fund and the distribution agency are not private entities with private funders but were established by the state and regulated by the Lotteries Act.
The commissioner and board are appointed by the Minister of Trade and Industry and the NLC was accountable to Parliament. Its annual statements are audited by the Auditor-General.
“The NLC is clearly a state entity. It is irrelevant that some of its funds come from sources other than the state, such as the sale of lottery tickets,” Mkise says.
She says the SIU Act is triggered where there is an allegation of unlawful or improper conduct by any person which has caused or may cause serious harm to the interests of the public.
“Maladministration of the NLC clearly harms the interests of the public. And it is absurd to contend otherwise,” she says.
In addition, Mkise says, Nevhuntanda’s review application is way out of time – by at least two if not three years. However, if the court is inclined to grant condonation for this, it would not be in the public interest if it resulted in the”wrongdoers being shielded”, she says.
“The SIU has completed 90% of the second phase of its three phase NLC investigation. The investigation in its totality is worth about R2-billion which the NLC has lost due to corruption at the organisation.
“The SIU has been able to establish that officials at the NLC and associated entities were involved in an elaborate scheme … where monies earmarked for charities and NGOs were paid to charities and NGOs hijacked and controlled by NLC officials and those monies were then used to acquire numerous properties, vehicles and other assets for the NLC officials instead of those monies being used for worthy causes.”
She says the officials who improperly benefited included Nevhutanda who had acquired assets (including a R270-million Pretoria mansion) through this scheme.
This, and other assets belonging to him and other NLC officials and associates, have been preserved through court orders.
Mkise says in those proceedings, which the SIU is pursuing in order to get final forfeiture orders, Nevhutanda was given an opportunity to dispute the allegations against him “but had opted not to do so”.
“The real motive in seeking to review and set aside the proclamation is so that he can avoid accountability. He wants evidence obtained by the SIU to be returned to ‘its rightful owners’ and not be used against him in the pending civil proceedings. He wants to be allowed to retain the proceeds of his corrupt conduct,” she says.
The review application has yet to be set down for hearing because not all the papers have been filed. Nevhutanda will file a further affidavit responding to Mkise and then the parties will have to file heads of argument.
GroundUp has previously reported that the review application is delaying the forfeiture of millions of rands of assets currently being preserved as “proceeds of crime”.
In total, assets have been preserved worth more than R344-million, including properties, luxury vehicles and two Ocean Basket franchises owned by people implicated in the plundering of Lottery funds.
In an order handed down on 5 September, Pretoria High Court Judge Nelisa Mali, who was dealing with an application brought by the National Prosecuting Authority (NPA) for the final forfeiture of the assets to the state, postponed it to an undetermined date to allow for the final determination of Nevhutanda’s application.
