Former president Jacob Zuma, his son Duduzani and the Gupta brothers could be compelled to testify before the judicial commission of inquiry into state capture should they wish to cross-examine the witnesses who have given testimony against them.
Advocate Vincent Maleka of the commission’s legal team, argued on Monday that the commission ought to impose conditions on the privilege to cross-examine witnesses. They must be willing to take the witness stand themselves, Maleka said.
The request from the legal team follows the bombshell testimony of former deputy minister of finance Mcebisi Jonas on Friday and former ANC MP Vytjie Mentor’s appearance before the commission on Monday.
Last week Jonas, led by advocate Phillip Mokoena, testified that in October 2015 Gupta patriarch Ajay Gupta had threatened to kill him after he rebuffed his offer of a R600-million bribe and that the Hawks had attempted to sabotage the investigation into said bribe.
On Monday, Mentor detailed the events preceding an alleged offer to her of a similar bribe at the Gupta compound in Johannesburg in 2010.
Statements from both Jonas and Mentor suggest Zuma was privy to these meetings.
The representatives of those implicated in both statements — including counsel for the Zumas and the Guptas — were in attendance at the inquiry on Monday.
It emerged on Monday that former presidential aide Lakela Kaunda and Major General Zinhle had applied for leave to make cross-examinations.
Kaunda was implicated in Mentor’s testimony as having facilitated the meeting between her and the Guptas. In his testimony, Jonas said Mnonopi had tried to get him to sign a false affidavit to foil the Gupta investigation into the alleged Gupta bribe.
Deputy Chief Justice Raymond Zondo, who is chairing the commission of inquiry, said he does not necessarily agree that one should not be granted leave to cross examine a witness should they not also be willing to take the witness stand themselves.
Maleka asked that Zondo consider rule 3.6 of the Commissions Act, which states: “In deciding an application contemplated in Rule 3.3.6 [to give evidence himself or herself; to call any witness to give evidence on his or her behalf; or to cross-examine the witness], the Chairperson may, in his discretion and on such terms and conditions as he may deem appropriate, grant leave to an implicated person: (a) to give evidence; (b) to call a witness to give evidence on his behalf and/or (c) to cross-examine the witness implicating him or her.”
The clause thus allows Zondo to place conditions on those seeking to cross examine and Maleka argued that that condition should be that those seeking to cross examine a witness “put forward a version that can be tested”.
But Zondo said that such an application should mean that a person is compelled to take the stand.
The Commissions Act affords those implicated the opportunity to apply for leave to cross examine a witness within two weeks of receiving notice. Maleka further requested that Zondo decide whether this two-week period is binding, as a number of those implicated have failed to meet this deadline.
Maleka told Zondo that decisions regarding the conditions of these applications are a matter of urgency.
Zondo suggested that the commission will deal with the applications on Tuesday, following further consultations. Mentor’s testimony is scheduled to end on Tuesday.