(Oupa Nkosi/M&G)
The Guptas will not expose themselves to the “incompetence” of the Hawks and the National Prosecuting Authority (NPA) by returning to South Africa to testify before the commission of inquiry into state capture, said their lawyer on Thursday.
Advocate Mike Hellens SC, the lawyer for Gupta patriarch, Ajay, was arguing why his client should be granted leave to cross-examine the commission’s witnesses, and why this should not require his client to come back to South Africa.
He told the commission that it is the attitude of his client that the Hawks and the NPA are “recklessly incompetent and a national embarrassment”.
This was in response to the questions posed by Deputy Chief Justice Raymond Zondo, the commission’s chair, regarding Ajay Gupta’s unwillingness to return to the country to give his opposing testimony.
Zondo is tasked with either granting or denying leave to cross examine. According to the the commission’s regulations, “there is no right to cross-examine a witness before the Commission but the Chairperson may permit cross-examination should he deem it necessary and in the best interests of the work of the Commission to do so”.
As the chair of the commission, Zondo is also expected to make a decision whether or not attach conditions to leave to cross-examine. Last week Advocate Vincent Maleka SC, of the commission’s legal team, argued that Zondo ought to impose conditions on the privilege to cross-examine witnesses that would require implicated persons to take the witness stand themselves.
Maleka urged Zondo to consider that the “privilege [to cross examine] comes along with some responsibility, and the responsibility is to undertake to testify orally under oath and that they too become subjected to cross-examination”.
“There can be no doubt about the desirability that if people are going to cross-examine they should really be prepared to take the witness stand and give evidence … But whether or not this goes as far as to compel that they must make that choice upfront. I am not sure, it might be something that needs argument,” Zondo responded.
Zondo might thus refuse leave to cross-examine a witness if an implicated person is not prepared to testify and be subjected to cross-examination.
Ajay Gupta is currently residing in Dubai and is considered a fugitive from justice. Hawks spokesperson Hangwani Mulaudzi confirmed to the Sunday Times this week that an arrest warrant was issued for Gupta in February, but he declined to identify what charges Gupta faced.
Hellens pointed to this warrant, saying that his client has no clarity on it. He said that the warrant is “completely up in the air”.
He also pointed to the state’s case against Gupta nephew, Varun Gupta, as an example of the NPA’s incompetence.
Varun Gupta was charged alongside Ashua Chawla‚ Kamal Vasram‚ Ronica Ragavan‚ Nazeem Howa, all of whom worked for the Gupta-owned businesses.
They were arrested in February in connection with the alleged theft of R250-million linked to the Estina dairy farm project in Vrede. But they successfully challenged the provisional restraint order which the Asset Forfeiture Unit obtained against them and Varun Gupta was granted his application to have his bail conditions relaxed so that he can leave South Africa.
In August, the Bloemfontein magistrate’s court granted the state’s request for a lengthy postponement in the Estina dairy farm case.
Hellens said on Wednesday: “The high court discharged those orders finding that the test by the state, by the Asset Forfeiture Unit and by the NPA had failed dismally … Both learned judges show that the Asset Forfeiture Unit did not understand the banking, they did not understand the flow of money and the accusations made to the various individuals and companies were wholly unjustified on their own case.”
Hellens reiterated that the attitude of the Guptas is that the Hawks were incompetent and the NPA was reckless. They will not expose themselves to such authorities, he said.
Zondo responded by pointing out that, if these entities are as incompetent, as the Guptas say they are, then an independent judiciary will come to their rescue and rule in their favour — as it did so in the aforementioned case.
Hellens contended that these matters are not necessarily ventilated with the urgency they require. There is a lack of integrity of the minds of the Hawks and the NPA, Hellens said.
He told the commission that his client would, however, be willing to give his testimony in another location, or via video call.