President Cyril Ramaphosa is standing firm on his decision to sign a proclamation authorising the Special Investigating Unit (SIU) to probe corruption at the National Lotteries Commision (NLC).
Ramaphosa has filed a personal affidavit in a court application launched in the Pretoria High Court by Alfred Nevhutanda, former chairman of the NLC, in which Nevhutanda seeks to review and set aside the proclamation signed in October 2020.
That application gave the SIU authority to investigate “maladministration” in the NLC from January 2014 to October 2020 which, Ramaphosa notes in his opposing affidavit, “falls in the main under [Nevhutanda’s] tenure”.
The investigation has led to the preservation of assets valued at R344-million, including a R27-million Pretoria mansion allegedly owned by Nevhutanda and bought with lottery funds.
Nevhutanda wants the proclamation to be declared unlawful because, he says, the NLC is not an organ of state, nor does it deal with public money, and both, he says, are prerequisites for authority under the SIU Act.
Further, he says, the proclamation is too broad – giving the SIU the power to “go on a fishing expedition, permitting it to turn over any stone to its heart’s content”.
He also claims that Ramaphosa did not apply his mind properly when he signed the proclamation.
But Ramaphosa says there is no legal basis for Nevhutanda’s complaints, and that the review is out of time.
He says the NLC and the National Lottery Distribution Trust, which it administers, are state institutions. The NLC is tasked with ensuring the proper conduct of the Lottery and for administering the funds paid over by the operator. The NLC and the trust deal with public money.
He says as usual with SIU requests (for proclamations), the matter underwent a series of reviews — including consideration by the Minister of Justice — before a “document pack”, containing the outcome of the provisional investigation landed on his desk.
The pack, he says, contained specific allegations and statements suggesting that grants might have been paid out irregularly and improperly and that family members of NLC officials had benefited.
With regard to the allegations, while specific examples were identified, “the documentation before me suggested that the potential irregularities in grant allocations and payments was likely more widespread”.
Ramaphosa said even if Nevhutanda’s assertions were proved correct, it would still not be just and equitable for the proclamation to be set aside, since the investigation had been going on for more than two and a half years, at considerable expense to the NLC.
The SIU, which is also opposing the application, says Nevhutanda’s true motive is to get back assets which have been preserved, prevent their forfeiture to the state and avoid the consequences of his alleged crimes.
But Juliana Rabaji-Rasethaba, the head of the Asset Forfeiture Unit on behalf of the National Director of Public Prosecutions (NDPP), said in an affidavit that this would not be the result if Nevhutanda succeeded. The NDPP is also opposing his application.
Rabaji-Rasethaba said the NDPP had statutory powers which allowed her to approach the courts to preserve assets deemed to be proceeds of crime.
These powers should not be conflated with the powers conferred on the President and the SIU.
“It would therefore be incorrect to argue that, if the (proclamation) decision was ‘illegal’, it sullies the decisions of the NDPP and the preservation orders it has obtained. These were self-standing decisions which can only be rescinded by a court of law.”
Rabaji-Rasethaba said Nevhutanda was not challenging the decision by the NDPP to obtain the orders and there was also no challenge to the preservation orders obtained.
Her affidavit argues that the NLC is indeed a state entity and that the proclamation is lawful.
Nevhutanda will have to file a final affidavit before the matter is set down for hearing.
GroundUp has previously reported that his review application is delaying the forfeiture of millions of rands of assets, including properties, luxury vehicles and two Ocean Basket franchises owned by people implicated in the plundering of Lottery funds — currently being preserved as “proceeds of crime”.
In an order handed down last year, Pretoria High Court Judge Nelisa Mali, who was dealing with an application brought by the National Prosecuting Authority 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.
