Analysis: Are we heading for a state capture inquiry without the 'capturers'?
Zuma has already said he won't cross-examine witnesses, and there's a chance the Guptas won't appear either
Former president Jacob Zuma’s decision to not cross-examine state capture inquiry witnesses should not be confused with an admission of guilt, experts said on Sunday.
Zuma has chosen to not seek to cross-examine any of the witnesses who have so far testified before the State Capture Inquiry, in direct contrast to the Gupta family.
Does this mean Zuma admits the truth of the evidence against him? Not at all, say experts contacted by Times Select.
While the Guptas say they have “objective evidence” to place before the Zondo commission of inquiry to dispute the testimony against them, Zuma has opted to stay out of it. He said he would not seek to state his version of events on record through cross-examination, since he does not believe any of the testimony implicates him in any criminal or ethical wrongdoing.
But legal insiders say not too much should be read into Zuma’s decision not to participate.
Lawyer James Grant stressed that the inquiry, unlike a criminal trial, does not require Zuma to counter the evidence against him through cross-examination. “Cross-examination (in an inquiry) is just damage control. In a court of law, you must allow the witness to comment (on your version). Here, there is no obligation to cross-examine, only the right.”
Grant said Zuma did risk the prospect of negative credibility findings being made against him, because of his failure to cross-examine.
Attorney Ulrich Roux agrees: “The implication would essentially be that Zuma wouldn’t be able to test the witnesses’ versions and put their versions forward to the witnesses.
“This means that the credibility of the witnesses won’t be challenged and the chairperson (deputy chief justice) could therefore place more weight on what the witnesses testify.”
Zuma’s lawyer, Daniel Lungisani Mantsha, wrote to the inquiry after Zuma was notified that he may be implicated by the evidence of former deputy finance minister Mcebisi Jonas, ex-ANC MP Vytjie Mentor, current and former government communications heads Themba Maseko and Phumla Williams, and former public enterprises minister Barbara Hogan.
“We have consulted our client ... We are satisfied that nothing in the aforementioned witnesses’ statements implicates or may implicate our client in the infringement of the aforementioned statutes, policies of government and relevant ethical codes,” said Manthsa.
In other words, while not admitting the truth of the testimony against him, Zuma does not believe that, even if it is accepted, it shows he did anything illegal.
Deputy Chief Justice Raymond Zondo will rule this week on whether the Guptas can cross-examine the state capture witnesses who have implicated them.
This decision will determine whether the family continues to participate in his inquiry – and if so, how.
The Guptas have made it clear that they will only give evidence from outside SA, by video link or through the inquiry travelling to them, because they “mistrust” the Hawks – an argument that the inquiry’s legal team has strongly rejected.
If Zondo refuses to allow the Guptas to testify from outside the country, it’s understood that the family will remove themselves from the inquiry entirely.
And, as their advocate Mike Hellens has argued, that means the Guptas’ response to the claims made against them by Jonas, Mentor and Maseko will be absent from the inquiry’s evidence and findings.
“The commission should find it nearly impossible to conclude that a valid finding, report or recommendation could ever be made by it, based, in part or in whole, on evidence which has been untested,” he argued in documents before the inquiry.
The commission is expected to continue on Monday when it will hear expert testimony from Treasury official Jan Gilliland.