Zondo lawyers say Gupta kingpin Salim Essa’s review bid may end up costing as much as R10m

10 Dec 2023

A pro forma bill submitted as part of security for a cost application puts the spotlight back on concerns over the payment of private lawyers handling several high-stakes court reviews of the State Capture Report.

Attorneys representing the State Capture Commission in a review application filed by Gupta enterprise kingpin Salim Essa have submitted a R10-million pro forma bill of costs.

This is an estimated cost should the case against Essa run all the way to the Constitutional Court.

Essa, who now styles himself as a mere immigrant to Dubai and not a fugitive from justice, has hit back with an R82,000 bill of his own. This relates only to a cost order awarded against the commission during the early stages of the case.

The bills are yet to be taxed and Essa has filed a notice to oppose the commission’s pro forma bill.

The commission’s lawyers have submitted the R10-million invoice as part of their court application for Essa to put up R5-million in security to cover its costs for defending the commission’s report.

The commission is of the view that Essa has placed himself beyond the reach of the court and security is necessary to ensure that taxpayer funds used to defend the report are safeguarded in the event he loses the bid to overturn parts of the report as it relates to him.

Essa is implicated in several big-money transactions across Eskom and Transnet and, like the three Gupta brothers, he was also slapped with financial sanctions by the US Treasury in 2019 and later by the UK government.

Read more in Daily Maverick: Who is Salim Essa?

Calculations suggest the commission’s legal team is bracing for the battle against Essa to go all the way to the country’s apex court.

Lawyers for the commission have submitted a provisional invoice for just more than R10-million, covering costs going back to August 2022 when Essa first went to court. This includes the projected cost of two counsel calculated at just more than R7-million.

The actual fees for the attorneys in question are projected at no more than R3-million. Overall line items and disbursements cover should the case end up at the Constitutional Court include:

Perusal of a report relating to McKinsey & Co and Trillian. Essa held a majority stake in Trillian until mid-2017, while McKinsey has repaid Eskom just more than R1-billion in fees it raked in through an off-grid partnership with Trillian;

Attending to specific parts of the State Capture report dealing with Eskom’s payments to the Gupta-owned Tegeta Resources and Optimum Coal Mine; and

Attending to more than 1,700 transcripts of witness statements submitted to the commission as part of the case against Essa.

Essa’s bid to review the report was launched in August 2022 and while the main case has not progressed yet, the commission’s application for security for costs is taking shape.

Should it be unsuccessful in its bid to extract security from Essa, the payment crisis for private lawyers representing the commission is likely to be compounded.

The Department of Justice has publicly stated that it is not footing the bill for this case. This is because the State Attorney claims to have lost its mandate in the matter when it was displaced by the team of private lawyers brought in to defend the commission.

The ongoing payment issues emphasise the need for a consolidated legal and financial plan to defend the State Capture Report.

Chief Justice Raymond Zondo, in his capacity as the erstwhile chairperson of the inquiry, previously asked several private attorneys to help defend the report in court due to concerns about the State Attorney’s capacity and handling of some of the reviews.

The understanding was that payment issues with the Department of Justice would be thrashed out in due course.

However, more than a year since some of those firms came on board, they are yet to be formally engaged by the State Attorney.

While it has always been understood that the private lawyers were prepared to work at State Attorney rates, it now seems that negotiations continue after they were offered rates more aligned with magistrates’ court tariffs, which are much lower.

The ongoing payment issues emphasise the need for a consolidated legal and financial plan to defend the State Capture Report – the final product after three years of public hearings into allegations of fraud and corruption in the public sector.

Some of those reviews are politically charged and the outcome is expected to inform any criminal cases that may flow from the report.

Other review applications include those of former Eskom executive Matshela Koko, former State Security director-general Arthur Fraser, Cabinet minister Gwede Mantashe, former SAA board member Yakhe Kwinana and several other bigwigs previously of the Passenger Rail Agency of South Africa.

Most of these are being handled by BR Rangata Attorneys and Molefe Dlepu Inc, both women-led black firms.

Like those two firms, Majavu Inc is working without any formal payment guarantee. Attorney Zola Majavu told Daily Maverick that his firm is representing the commission and Zondo in the review application brought by Mantashe.

Majavu declined to be drawn on the payment issue but said it would in no way affect his commitment to his clients.

Daily Maverick recently revealed that the Department of Justice pledged a budget of no more than R6-million for a few months up to March 2024 towards the fees for the private attorneys.

It said funds would not be retrospective and might only cover legal bills racked up since August 2023, which poses significant problems for lawyers responsible for settling the fees of various advocates briefed to work on the review cases and the volume of work involved since lawyers were first briefed.

Most of the private lawyers have been working on the reviews for more than a year.

Essa, who is widely believed to be marooned in Dubai, is wanted in connection with a criminal case linked to Transnet’s acquisition of 1,064 locomotives. He was a no-show on Thursday when the case briefly came before the Specialised Commercial Crimes Court in Palm Ridge, east of Johannesburg.

However, Daily Maverick has seen an updated draft indictment provided to the accused and it appears that Essa’s name no longer features. It is possible that the State has decided to separate his trial from those of his co-accused so that theirs is not held up by his absence from court.

The Investigating Directorate of the National Prosecuting Authority, which is driving this case, did not immediately respond to questions about whether there was an active warrant for Essa’s arrest and whether it has initiated processes to seek to have him extradited to South Africa to stand trial.

A court may grant security as a remedy in favour of defendants in cases where there is a likelihood that the applicant may be unable to pay up in the event of an adverse cost order.

In Essa’s case the commission is seeking R5-million as security, partly because it deems him to be a fugitive from justice. Essa, it argues in its application for security, is beyond the reach of South African courts.

The payment debacle has resulted in Zondo publicly criticising the Department of Justice’s handling of the matter over several months until the recent R6-million pledge was confirmed.

The outcome of the review applications is expected to significantly inform future criminal prosecutions that may flow from the State Capture Report.

The three private law firms currently handling the various review applications are supported by more than a dozen senior and junior advocates who are also affected by the delay in finalising payment agreements with the department. DM

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