State Capture judge seeks statement from Zuma and rules Guptas must come back to SA to cross examine witnesses

Justice Raymond Zondo has asked former president Jacob Zuma for a sworn statement to put forward his version to incriminating testimony – just 24 hours after Zuma publicly rejected the concept of State Capture while addressing students at the Walter Sisulu University in Mthatha.

Zondo, the chairman of the Commission of Inquiry into State Capture, says that Zuma’s lawyers announced that he had taken the view that he is not implicated by any of the witnesses thus far and for that reason, had not brought an application for leave to cross examine any of them.

But, said Zondo: “There are areas where I would like him to deal with, for example, testimony by Ms Mentor that while she was at the Gupta house, when she got agitated and and loud, he emerged from one of the rooms.”

Mentor, the former ANC MP, testified how Zuma arrived from another room during her meeting with Ajay Gupta after the Gupta brother allegedly promised to help her become a Cabinet minister in exchange for favours.

She said when she became loud, Zuma suddenly appeared to try and calm her down.

Similarly, Justice Zondo says his request to Zuma’s lawyers also includes him covering the testimony of former head of government communications, Themba Maseko, insofar as it named him.

Maseko testified before the Commission that Zuma called him on the day he was travelling to meet with Ajay Gupta to ask him to “help” the Guptas who were then trying to re-direct R600-million in government advertising spend to their new media company.

Zondo made this announcement during Thursday morning’s brief session when he dismissed the applications by Ajay and Rajesh Gupta to cross examine Maseko, Mentor and former deputy finance minister, Mcebisi Jonas from outside the country's borders.

The two, Zondo said, have no lawful reason to refuse to come to South Africa and appear in person before the State Capture inquiry.

This is in part the reason why he turned down their request to cross examine witnesses from Dubai, alternatively, as the Gupta brothers asked, via video link.

He said he would have no difficulty granting them leave to cross examine Maseko, Mentor or Jonas if they came and appeared before this Commission.

This would be in the interest of the Commission’s work. But, not on their terms as the Commission would have no powers to hold them accountable in the event that they produced false testimony on foreign soil.

“Ajay is seriously implicated and it would be fair for him to cross examine any witness that implicated him.”

But, the two Gupta brothers say they are in the United Arab Emirates and have no “intention of ever” returning to SA for any reason whatsoever.

They cited concerns of fears of arrest by “incompetent” law enforcement agencies, the Hawks and the National Prosecuting Authority.

In a supplementary affidavit from Ajay filed on Wednesday, he again emphasised incompetence by the Hawks and NPA and also said these agencies are “irresponsible” in the exercising of the power they have.

In this new statement, the judge said, Ajay Gupta said he respected the South African legal system and the judiciary.

“In effect, he seems to say he has no complaint about the judiciary of this country.”

While not holding a formal view on whether the Guptas are fugitives from justice as was claimed by the Commission’s Advocate Vincent Maleka, Justice Zondo relied on a Constitutional Court ruling in a different matter in which the court refused to even entertain an application by a fugitive from justice who had withheld from the court details about his whereabouts.

While the Guptas are not “strictly speaking fugitives,” Zondo said they fear arrest by local law enforcement agencies and therefore appear to be “running away” as they seek to stay out of reach of the South African legal system.

The Guptas, after all, would be in a position to challenge any unlawful arrest or conduct by either the Hawks or the NPA.

“Our Constitution and legal framework is one of the best in the world. Checks and balances are in place to ensure compliance with our laws and the Constitution.”

And, South African courts have wide powers to vindicate people and grant effective remedies against abuse of the system.

“In the circumstances, Ajay and Rajesh have no lawful reason for not coming to SA and the Commission,” Zondo said.

He rejected an effort by the Guptas for the Commission to travel abroad, saying there was no reason why the Commission should incur this cost.

“Other implicated persons may take the Commission and nation into their confidence and tell us all they know about allegations of corruption, fraud and State Capture and in the process they may implicate the Gupta brothers quite seriously and credibly in wrongdoing,” Zondo said.

While their version would be important for the overall work of the Commission to establish the veracity of allegations, the only reason they would not be heard is because they elected not to come to South Africa when they have no lawful reason to do that, the judge said in his ruling.

Allowing them to testify via video-link would be equally problematic as it would leave the Commission at their “mercy” insofar as it may need to compel them to produce certain documents or material evidence.

“They could ignore any instruction or order from the Commission and we would not be able to do anything about it.”

Said Zondo in his ruling: “It is a criminal offence for a witnesses to give false evidence. If Ajay Gupta was in this position, his conduct would not be a criminal offence as the Commissions Act has no extra territorial application.”

The Commission cannot create two classes of witnesses, those who come and be subject to consequences and the others, the Guptas. They would essentially enjoy special treatment if allowed to testify from Dubai, in person or via video link.

The judge dismissed their application in its entirety and stated that all parties who have been granted leave to cross examine witnesses, will have to produce a statement containing their version to witnesses like Maseko, Mentor and Jonas ahead of time.

The Guptas had through their legal representative, senior advocate, Mike Hellens, argued about the importance of the “element of surprise” in cross examination and had in their application requested that witnesses not have sight of statements beforehand.

All other applications for leave to cross examine witnesses, including that of Zuma’s son, Duduzane, were granted. He had initially said he would not testify or subject himself to cross examination as he currently faces criminal charges over the Jonas allegations. But, after he changed his mind, Justice Zondo granted his request along with several others.

An application by former Public Enterprises minister, Lynne Brown, is still pending. DM