Africa-Press – South-Africa. The National Prosecuting Authority’s (NPA) Asset Forfeiture Unit is gearing up for a possible “full-blown fight” with Optimum Coal Mine’s business rescue practitioners as contractor activity continues to erode the asset value of the mine.
Briefing the parliamentary portfolio committee on justice on Monday, the unit’s Advocate Ouma Rabaji-Rasethaba raised concern about the mini-pit operators mining at Optimum Coal Mine and collectively producing more than 700 000 tonnes per month.
“And in the last report that the [Optimum] curator has filed … we are seeing in the presence of the mini pit operators, it’s really eroding value,” said Rabaji-Rasethaba. “According to the calculation of the curator bonus, mini-pit operators have made approximately R6 billion.”
She said the business rescue practitioners (BRPs) still need to submit the contracts of the mini-pit operators.
“They claim they don’t have these contracts. But they’ve been in charge of this mine since 2018,” said Rabaji-Rasethaba. “And in this regard, we are headed for a full-blown fight with the BRPs because we’re now concerned about erosion of value.”
The mine, as well as the Optimum Coal Terminal (which holds the valuable export entitlement with the Richards Bay Coal Terminal), was placed into business rescue when it and other companies linked to the notorious Gupta family lost their transactional banking facilities.
An attempt to sell the mine out of business rescue to Liberty Energy – owned by former Gupta associate Daniel McGowan – was thwarted earlier this year when the NPA’s National Director of Public Prosecutions (NDPP) obtained a preservation offer over the Optimum assets based on its argument that the mine was bought with the proceeds of crime. The court also appointed a curator to oversee the preservation of the assets. The NPA has since applied for a forfeiture order over the mine. The legal proceedings are hotly contested, and leave to appeal the preservation order has been granted. Various interested parties have also filed several interlocutory applications.
The concern is “by the time this goes through the appeal process, there could be nothing left”, said Steve Swart, an MP and African Christian Democratic Party (ACDP) representative.
Lawyer for the BRPs, Bouwer van Niekerk, said he found Rabaji-Rasethaba’s comments about the mini-pit mining to be curious.
“Because the NDPP has no locus standi or right to interfere with that. As far as we are aware, and definitely not as far as the preservation order is concerned. There was a curator appointed for Optimum Coal Mine, but the curator was exactly that – appointed for optimum coal mine. So unless the NDPP is suggesting that the curator is there to act on the wishes of the NDPP, I find that statement curious.”
Van Niekerk said contracts pertaining to the mini-pit miners had been submitted to the curator.
The mini-pit operators are also the cited reason behind a recent decision by the Richards Bay Coal Terminal to cancel an interim agreement which has allowed coal to move from the mine down to the terminal and into export markets. RBCT has argued that the benefit of these exports is not accruing meaningfully to Optimum Coal Mine while contractors are making good profits.
Rabaji-Rasethaba said the NPA aims to have the forfeiture application progress as quickly as possible.
“Our objective really is to finalise the forfeiture proceedings, have the curator sell the mine as speedily as possible – of course at market value – so that the operations can start as soon as possible and as many people can then be re-employed back at the mine.”
The raft of litigation is, however, likely to delay the forfeiture application, she said.
The NDPP is also concerned about the condition of the mine, the water and waste management, and other safety and environmental issues which have also been raised in the curator’s report. “We’ve also sent a letter [last month] to the department of minerals and energy raising these very issues,” said Rabaji-Rasethaba. She however said the department is yet to even acknowledge receipt of the letter.
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