As long as the Gupta brothers are not prepared to return to South Africa, they will not be allowed to cross-examine witnesses to state capture, the Zondo commission heard on Thursday.
Deputy Chief Justice Raymond Zondo delivered his decision on the applications made by the Gupta patriarch, Ajay, his brother, Rajesh, and the former president’s son Duduzane Zuma.
While Zuma was granted leave to cross-examine former deputy finance minister Mcebisi Jonas, the Gupta brothers’ joint application was dismissed by Zondo on the basis that the commission would not yield to the conditions asked for by their lawyers.
Last week their lawyers, advocate Mike Hellens SC and advocate Dawie Joubert SC, argued why their clients should be allowed to cross-examine witnesses, despite them demanding certain limitations on their own participation in the commission.
The Gupta brothers said they would not testify in South Africa. Hellens said however that they would be willing to testify so via video call or at another agreed upon location.
Both Hellens and Joubert argued that their clients have been subjected to unfair and reckless investigations by the Hawks the National Prosecuting Authority (NPA). Hellens told the commission his client felt the Hawks and the NPA are “recklessly incompetent and a national embarrassment”.
Zuma had previously adopted a similar stance — saying he would not testify because he was facing parallel criminal charges, also related to state capture allegations. But on Monday it emerged that he had changed his mind.
Zondo thus granted Zuma leave to cross-examine Jonas, who has implicated him in coordinating a clandestine meeting with Ajay Gupta in 2015. At the meeting Jonas was allegedly offered the position of finance minister as well as a R600-million bribe in return for his cooperation in supporting the business interests of the Gupta family.
Zondo added that the commission commends Zuma’s change of heart.
He rejected the Guptas’ position that they had a valid or lawful reason not to return to the country. Zondo maintained that if the Guptas are in fact subjected to incompetent authorities, they will be saved by an independent judiciary.
Zondo added that Ajay Gupta had indicated in a supplementary affidavit that he has no complaints against the South African judicial system.
Rejecting the idea to give testimony outside of South Africa or via video call, Zondo said travelling to meet the Guptas in person would be too costly to taxpayers. Also, hearing their testimony via video call would undermine the commission’s powers to compel the Guptas to produce any material evidence.
Zondo added that, if the commission yields to their conditions, the Guptas “would enjoy special treatment that no other witness that appears before the commission would enjoy”.
Zondo noted the rules of the commission, which state that “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”.
Zondo said if they change their minds, the commission will grant them leave.
He said if the commission is not afforded the opportunity to hear the evidence of the Gupta brothers, it will not be because it does not want to. It will be because “they chose to turn their backs on this country”.