Guptas want to have their case and eat it too
Their plea to testify at the state capture inquiry from Dubai labeled ‘absurd’, as Zondo reserves judgment
Enabling the Guptas to testify from overseas would inevitably validate their criticism of local law enforcement as unreliable and incompetent.
Arguing against a request from the Guptas to testify in the commission of inquiry into state capture from Dubai via video link, Advocate Azhar Bham SC — representing former government communications head Themba Maseko — labelled their request as “absurd”.
“They want you to categorise the law enforcement agencies, and by extension the court system, as unreliable, incompetent and whatever unfortunate words were used,” Bham told commission chair Deputy Chief Justice Raymond Zondo. “The moment you do that, you might as well give up the commission now, because you can never refer matters that require further action to those very law enforcement agencies. It becomes absurd.”
Zondo reserved judgment on the Guptas’ application after they made it clear they would only give evidence outside of South Africa by video link or through the inquiry travelling to them. This because they “mistrust” the Hawks.
Zondo’s ruling will determine if the family continued to participate in the inquiry – and if so, how.
Gupta lawyer advocate Mike Hellens SC argued if Zondo ruled against his clients, claims made against them by Maseko, former deputy finance minister Mcebisi Jonas and former ANC MP Vytjie Mentor would be absent from the inquiry’s evidence and findings.
Zondo has, however, repeatedly questioned whether the Guptas – whose patriarch Ajay has been defined as a “fugitive from justice” by the Hawks – has any lawful reason to avoid giving evidence in South Africa, and contended that they are only willing to participate in his inquiry “under their own terms”.
“One is bound to ask the question: can you, on the one hand, run away or flee from a legal system and its institutions, but at the same time, want the benefits that legal system confers on those that participate in it?
“Can you do both? Can you say on the one hand I don’t like this system for whatever reason and you flee, but then you say, actually, it’s got some benefits, it allows cross-examination, I want to get that benefit?” Zondo asked.
Former president Jacob Zuma’s son Duduzane, a close associate of the Gupta family, has also asked to be given permission to cross-examine Jonas about claims that Duduzane set up a meeting at which a Gupta brother tried to bribe Jonas into taking the position of Finance minister. Duduzane doesn’t want to testify about Jonas’s claims, because he has been charged with corruption in relation to them.
Zondo was unimpressed.
“Why should there be some people who don’t seem to want to let what happens to everyone happen to themselves as well, subject themselves to the same rules as everybody in the country are subjected to?” Zondo asked Duduzane’s advocate, Dawie Joubert.
Zondo’s concerns have not only been echoed by lawyers representing Jonas, Maseko and Mentor, but the inquiry’s legal team leader, Vincent Maleka.
Maleka argued on Wednesday that the Guptas were attempting to use the inquiry to “proclaim their innocence”, and urged Zondo to dismiss their applications to cross-examine the trio. He slammed the Gupta brothers’ promise to testify at the commission into state capture from overseas as “worth nothing”.
“They simply want to use the commission processes to proclaim their innocence,” he added.
“We submit that the type of the undertaking through the heads of arguments by Gupta brothers, is not worth the pain because they may wake up and decide that they are not going to participate in the commission.”
He further argued there were cost implications to send the commissions legal team abroad, and as things stood, financial resources were already scarce.
“Even if we take that proposition on face value, we know that the road to hell is paved with good intentions, and we don’t have to risk that road,” said Maleka.
Zondo agreed and said it would be quite a “huge operation” because it meant more money would be required.
Hellens, however, sought to counter these arguments by denying Maleka’s assertions that his clients’ responses to the evidence against them was based on nothing but “bald denials”.
Hellens maintains that the Guptas have “substantive responses” to the claims made against them, and must be given the chance to provide this evidence, if the Zondo inquiry has any hope of “getting to the truth” about alleged state capture.
Zondo said he hoped to rule on the Guptas’ and Duduzane’s cross-examination applications next week.