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We won’t come to SA to testify: Guptas’ ultimatum to state capture commission

2018-09-06 19:05

The Zondo commission of inquiry into state capture on Thursday got a glimpse into what implicated parties may seek to dispute. 

Five witnesses had given explosive testimonies before the commission and those implicated were already scrambling as they submitted leave to cross-examine witnesses whose testimony had, in one way or the other, linked them to alleged state capture. 

Leading the charge for the implicated people was advocate Mike Hellens, the legal counsel for Ajay Gupta, who has so far been singled out as the mastermind who orchestrated the infiltration and eventual influence over government officials, departments and state-owned entities.

Hellens indicated that his client wished to cross-examine former parliamentarian Vytjie Mentor and former Government Communication and Information System head Themba Maseko. 

Through this submission and Hellens’ own heads of argument, it became clear that the Gupta brother did not seek to challenge former deputy finance minister Mcebisi Jonas’ incriminating claims that the Guptas offered him the position of finance minister, a cash bribe of R600 000 as well as an additional R600 million to be transferred to a bank account of Jonas’ choice.

It remained unclear whether Ajay Gupta would be challenging Jonas’ testimony through his other legal counsel, advocate Dawie Joubert, who also represented Rajesh Gupta and Duduzane Zuma.

Joubert maintained that his clients wished to cross-examine witnesses who had implicated them, however, Zuma was unwilling to testify on the basis that he had a parallel criminal charge that was being heard at the Specialised Commercial Crime Court.

Zuma’s legal representative also expressed concern over his client’s arrest and said he was not prepared to testify before the commission because of his “unfair treatment” by law enforcement.

“From the testimony given by Jonas it is clear that he [Jonas], as the lead witness, had not laid any criminal charges and yet my client was arrested – on what ground? This and other incidents of unfair treatment of Zuma by law enforcement are among the reasons why my client is no longer prepared to give testimony as there is no assurance that any testimony he gives may not be used against him during the other legal proceeding,” said Joubert.

In response to Joubert’s submission, the commission’s chairperson, Deputy Chief Justice Raymond Zondo, inquired how Zuma’s stance made any legal sense since he had already provided a written submission that detailed his version of events. 

Joubert – who appeared to have a momentary lapse in concentration – responded that the argument he had placed before the commission was the stance that his client was taking and, should this change, he would inform the commission.

Hellens revealed that although the Gupta brothers had expressed the desire to cross-examine witnesses, they were unwilling to appear before the commission at its Parktown headquarters. 

“My client and his brothers are willing to avail themselves before this commission, chair. However, they are willing to do so provided the venue of the meeting is anywhere outside South Africa or via video link to the commission,” said Hellens. 

He said the Guptas would not subject themselves to the “authority of the Hawks and the National Prosecuting Authority” because these agencies were “incompetent” and had “displayed unfair treatment towards the family in their investigation and prosecution of the Estina case”. 

“I have submitted, chair, in my heads of argument that my client and his family are not unwilling to have their version of events made known to the witnesses so as to avoid precognition and pre-leading of their responses before cross-examination as this would blunt the very sharpness of the tool that is cross examination,” argued Hellens.

While the commission pondered on Hellens’ submissions, advocate Vincent Sewela – representing the Hawks’ Major-General Zinhle Mnonopi and Mandla Mtolo – informed Zondo that Mnonopi was withdrawing her application to cross-examine any of the witnesses because this was no longer in her best interests.

Sewela revealed that Mtolo was in possession on a recording of his interview with Mentor, which he wished to submit as evidence, and would like to continue his application to cross-examine.

Zondo granted Lakela Kaunda, Mtolo and implicated businessman Fana Hlongwane leave to cross-examine witnesses who had implicated them based on the fact that they had no problem availing themselves before the commission as well as giving testimony.

Jonas’ legal representative and legal representatives for the commission argued that witnesses came before the commission and testified and made their testimonies available to lawyers representing implicated parties – therefore for fairness sake, there commission should apply similar conditions on implicated parties. 

Zondo informed those in attendance that when he was ready to give judgment, he would come back to the commission with a response. 

Proceedings would continue on Monday when the next witness is expected to take the stand. 

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November 18 2018