Gupta patriarch, Ajay, has formally applied to cross-examine those who have implicated him in their testimony before the state capture inquiry.
This, despite the looming possibility that the commission’s chair, Deputy Chief Justice Raymond Zondo, could still impose conditions on the privilege to cross examine which could compel Ajay to also testify.
On Monday morning, counsel for the Ajay Gupta, Advocate Mike Hellens SC, confirmed before the commission that his client has applied to cross-examine former ANC MP Vytjie Mentor and former head of government communication and information systems Themba Maseko.
Mentor’s testimony last Monday recounted how she was allegedly offered a position in Zuma’s Cabinet by Ajay Gupta in 2010. Later in the week, Maseko gave details on how he was approached in 2010 by Ajay who allegedly attempted to strong-arm him into spending his department’s R600-million media buying budget on buying advertising in Gupta-owned newspaper, The New Age (TNA). Maseko also told the commission that he had received a phone call from former president Jacob Zuma, asking him to aid the Gupta brothers with placing government advertisements.
Last week Advocate Vincent Maleka SC, of the commission’s legal team, argued 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.
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 Ajay Gupta is currently residing in Dubai and has reportedly said he will not return to South Africa to testify at commission. But, according to a Sunday Times report, he is prepared to give his version via video link.
Following a short adjournment of Monday’s session, Zondo gave his directions on when applications of implicated persons to cross examine will be heard. Zondo said counsel on all sides will file their written submissions with the secretary of the commission Dr Khotso De Wee on Tuesday at 10am. Subject to this, the applications to cross examine which have been filed will be heard on Wednesday at 10am.
Also attending the commission on Monday was Advocate Dawie Joubert SC, who has filed applications on behalf of the Rajesh and Ajay Gupta as well as the former president’s son, Duduzani Zuma. Advocate Jaap Cilliers SC also appeared at the commission on behalf of controversial arms deal adviser Fana Hlongwane.
As he was being placed on record, Hellens raised counsel’s concern regarding the possible condition that would compel implicated persons to appear before the commission.
He said in his client’s application, counsel will “take on boldly the the preparation of witnesses for cross-examination” including the apparent possibility that the right of cross examination is linked to an undertaking to give evidence before the commission.