Zondo to make a call on Gupta, Zuma applications to cross-examine

Raymond Zondo is tasked with either granting or denying leave to cross examine.

Raymond Zondo is tasked with either granting or denying leave to cross examine.

The findings of the commission of inquiry into state capture is set to continue on Monday, with the commission’s chair, Deputy Chief Justice Raymond Zondo, expected to deliver his decision on the Guptas’ and the former president’s son’s applications for leave to cross-examine.

Last Thursday, the lawyers of Gupta patriarch, Ajay, his brother, Rajesh, and Duduzane Zuma told Zondo that the commission would be undermined if it does not give their clients the opportunity to cross-examine its witnesses.

Their lawyers, advocate Mike Hellens SC and advocate Dawie Joubert SC, argued why their clients should be allowed to cross-examine witnesses who have implicated them in their testimonies, despite them demanding limitations on their own participation in the commission.

Zondo is tasked with either granting or denying leave to cross examine. According to 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.

Hellens indicated that the Gupta brothers would not be willing to give their own testimony in South Africa, but would do so on the condition that they would be able to do so via video call or at another agreed upon location.

Joubert, on the other hand, told the commission that Zuma would not appear before the commission as long as he faces parallel criminal charges.

Both lawyers contended that their clients have been the subjects of unfair and reckless investigations by the Hawks the National Prosecuting Authority (NPA).Hellens told the commission that it is the attitude of his client that the Hawks and the NPA are “recklessly incompetent and a national embarrassment”.

The Guptas are considered fugitives from justice. Hawks spokesperson Hangwani Mulaudzi confirmed to the Sunday Times last week that an arrest warrant was issued for Ajay in February, but he declined to detail the charges against him.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”.

Zondo argued that his coercive powers would be taken away from him if the were to Guptas testify in another jurisdiction. He also pointed out that moving the commission to meet the Guptas outside of South Africa would cost a lot of money.

The legal team’s Advocate Vincent Maleka SC reiterated Zondo’s points. He asked what would happen if implicated parties committed perjury outside of the commission’s jurisdiction. Zondo’s power to compel them to answer for their perjury will be undermined, Maleka said.

Maleka said this undertaking is thus not in the interest of the commission or of the public. “The road to hell is paved with good intentions,” he added.

Joubert, who also represents the Guptas, said that Zuma “stands on a somewhat different footing” because of the parallel criminal charges against him.In July, Zuma was released on R100 000 bail after briefly appearing in the Specialised Commercial Crime Court in Johannesburg on charges of corruption. 

The case has been postponed to January 24 2019.The charges against Zuma were in connection with his alleged role in coordinating a clandestine meeting in 2015 between former deputy finance minister Mcebisi Jonas and Ajay Gupta, during which Jonas was allegedly offered a R600-million bribe and a position in then president Jacob Zuma’s Cabinet.Jonas detailed this encounter in his testimony before the commission last month.

Duduzane Zuma was charged with contravening the Prevention and Combating of Corrupt Activities Act. Zuma had been overseas since February, but when his brother, Vusi Nhlakanipho Zuma, died of lupus, Duduzane returned to the country to attend his funeral.

Furthermore, earlier in July, Zuma received a summons to appear in the Randburg Magistrate’s Court on two charges of culpable homicide. The charges related to a car crash in February 2014 during which he rear-ended a taxi after losing control of his Porsche on the Grayston Drive off-ramp on the M1, north of Johannesburg. One woman died instantly and three others were injured.

The case in the magistrate’s court was postponed to October. On Thursday, Joubert conceded that, as per the rules of the commission, no evidence heard by the commission shall be admissible in any criminal proceedings. But, he added, implicated parties cannot also be exonerated on the evidence they give.

Joubert said that his client has been disappointed at the “unfair treatment” he has received in the decision to lay charges against him. Zuma is thus not willing to give his own testimony as long as he faces criminal charges, Joubert said. Joubert added that this stance might change if his client were subpoenaed by the commission.

Zondo noted that the life of this commission would be significantly extended, if it is expected to wait for Zuma’s criminal trial to be finalised before he submits himself to testify. He also argued that if the Guptas and Zuma truly consider the South African authorities incompetent and out for them then an independent judiciary would come to their rescue and operate in their favour.

Despite these conditions on these testimonies, Hellens and Joubert were tasked with arguing why their clients should still be allowed to cross examine the commission’s witnesses.

Hellens pointed out that the mandate of the commission is not just to hear the evidence put before it, but to inquire into the truth. He conceded that the commission might not be a criminal or civil trial, but nevertheless, the evidence must be tested.

Hellens also argued that no time limit or constraint should be applied to the process of cross-examination. The cross examiner should have access to the “full gamut of the tools of cross-examination”. Joubert’s argument was aligned to that of Hellens.

On a matter of procedure, Hellens also argued that witnesses should not be privy to the affidavits submitted to the commission ahead of their cross-examination. As per the rules of the commission, when an implicated party applies to cross examine a witness, they must attach to their application their version of the events testified to.

Hellens contended that, in furnishing witnesses with these affidavits, witnesses will have the opportunity to be “precognised” in advance of their questioning. This would allow them to rethink or adjust their initial statement, taking away the element of surprise so crucial to cross-examination, Hellens argued.

“It would blunt the very sharpness of the tool of cross examination,” he said.

Hellens said that the element of surprise would allow Zondo to better read the truth through an interpretation of gestures — “the blush, the turn, the hesitation, the gulp of water” — made by the witness.

Zondo, on the other hand, contended that time could be saved by furnishing witnesses with affidavits ahead of their cross-examination.

Maleka added that the best and most efficient form to cross-examine is to give the opposing version to the witness in advance. The aim is not to trick witnesses with cross-examination, he said.

Hellens reiterated that witness testimony would not be properly tested without cross-examination that maintains the element of surprise.

“The true North for this commission is the truth,” Hellens said, arguing that without the Guptas’ evidence, the findings of the commission will be undermined.

Sarah Smit

Sarah Smit

Sarah Smit both subs and writes for the Mail & Guardian. She joined the M&G after completing her master’s degree in English Literature from the University of Cape Town. She is interested in the literature of the contemporary black diaspora and its intersection with queer aesthetics of solidarity. Her recent work considers the connections between South African literary history and literature from the rest of the Continent. Read more from Sarah Smit

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