Optimum creditor blasts ‘untested’ Gupta links

Johannesburg - A director of Templar Capital, which acquired equity in the Mpumalanga mining company Optimum Coal Mine (OCM) after the Guptas failed to pay debts owed, has taken offence to the “irrelevant, vexatious and/or scandalous allegations” placed before the court by the Richards Bay Coal Terminal (RBCT).

The answering affidavit to the RBCT by Dubai-based Daniel McGowan, who is seeking to revive the mine, rejects allegations that he had a “Grand Plan” driven by “improper motives” to export coal through Optimum Coal Terminal (OCT) so he could make “super profits” at the expense of OCM and OCT, and “unlawfully dissipate funds out of South Africa”.

The contractual dispute over the RBCT’s decision to terminate OCT coal export allocation in Richards Bay in KwaZulu-Natal at the end of January is being heard before the High Court in Durban. McGowan wants the allegations to be struck from the court records.

RBCT CEO Alan Waller said he relied on the state capture allegations during the commission of inquiry chaired by Chief Justice Raymond Zondo. McGowan said the allegations were irrelevant to the dispute before the court and “are advanced by RBCT only to create an atmosphere, in the hope of bolstering RBCT’s case on the merits”.

“The records in the Zondo Commission reports are the prima facie findings of the Commission, based on the evidence available to and put before it. Those findings were reached in order to inform the Commission’s recommendations to the president. But they are not final or binding on anyone and have no direct external legal effect. Neither RBCT nor this court can rely on them as proof of anything against Templar, Liberty Coal or me”.

Further, he said, the allegations in the preservation and forfeiture applications by the National Prosecuting Authority are the “untested averments” of the National Director of Public Prosecutions, Shamila Batohi, “which have been stated as fact by both (Batohi) and now RBCT”.

“I dispute these allegations. As I previously stated, I take issue with the claims that I was aware of or party to the Gupta’s alleged unlawful schemes, and that I ever participated in money laundering - whether through Templar or Liberty Coal or at all”.

He continued: “I recorded my intention to deal with the allegations made against me in the pending forfeiture proceedings. The forfeiture application is the appropriate forum for those issues to be ventilated and determined”.

The preservation order was granted on the basis that Batohi had “reasonable grounds to believe” that the OCM and OCT shares, and the OCM business, were acquired using the proceeds of crime.

“Its grant entailed no adverse findings against Liberty Coal, Templar or myself”. In addition, he said, Waller relied on the reports issued by the curator appointed by the High Court in the preservation order, “as though they contain uncontroversial and indisputable facts”.

He said the curator’s reports “constitute no more than his opinion of certain aspects of the mine and its operation,” adding that “his assessment is based on a desktop assessment (he has not visited the Mine“.

He said that another expert opinion from an independent geological consultant with 33 years of experience in the South African coal industry showed genuine factual disputes arising from the curator's report.

McGowan said that Waller also directly imputed on him the death threats made against the curator, “which allegations go well beyond ‘atmospheric’ and are in fact defamatory”.

“RBCT has since retracted those allegations and confirmed that they do not claim that those death threats emanate from me. Suffice it to state that they are wholly untrue and unfounded. I deplore the death threats made against the curator, and am in no way party to them,” he said.

In a letter dated last Friday, McGowan’s lawyers raised “an issue of grave concern is the false, misleading and defamatory utterances on oath by the CEO of RBCT which are clearly intended to and will, in fact, cause harm to our clients”.

Lawyer Brett Tate of Tabacks Attorneys said Waller made reckless, unfounded and unproven defamatory statements that McGowan and the OCM business rescue practitioners were “creating so much unnecessary social unrest, death threats and employment insecurities” and that the chaos was meant to preserve McGowan’s Grand Plan. Tate said the allegations had no factual basis and demanded a retraction and an apology.

In a response on Monday, the RBCT said McGowan’s complaints “relative to the ordinary meaning and understanding of the contents…are without merit”. Lawyers Lawtons Africa said “Waller has not said that your clients are personally the instruments of social unrest or the authors of the death threats. The import of the affidavit is clear. The complaint is about the environment that has been created”.

However, the lawyers said they will place on record that it was not their intention to state that McGowan was behind the social unrest or death threats. Instead, Lawtons Africa continued, “RBCT holds the view that a new environment was created through the establishment, maintenance and expectation of relative permanence of the mini-pit operations. When this new environment was threatened, social unrest and death threats ensued”.

“It is further RBCT’s view that the current instability could have been avoided had the funds from the sale of coal sourced from OCM been deployed to pay OCM’s creditors, take the mine out of business rescue and resurrect the mine and the area dependent upon it. We trust this allays your concerns. Our client has further advised that it will publish both your letter and this response in a prominent position on its website”.

However, the OCM business rescue practitioner Kurt Knoop said in court papers that they wanted punitive costs for “allegations of criminality that RBCT has made against me and my joint business rescue practitioners”.

“Stripped of the mockingly advanced caveat that it is simply repeating accusations of criminality that are in the public sphere and may or may not be true (depending on the outcome of an application that does not involve the question of criminality), RBCT openly and repeatedly accuses Templar and Liberty of being criminal organisations that, in broad daylight, are plundering OCM’s resources for their own benefit by using OCT, as a mere conduit, for its export entitlement. RBCT calls this Templar and Liberty’’s nefarious ‘Grand Plan’”.

Knoop rejected the allegations of “repeated, if not fraudulent, misrepresentations; violently and forcibly allowing Templar and Liberty to exploit OCT’s export entitlement, and colluding with Templar and Liberty in criminal conduct”.

He said the RBCT had made the claim repeatedly in its court papers. “These repetitive and frivolous accusations do not assist this court in determining the true dispute, which is contractually based. Therefore, the affidavit should be entirely disregarded”.