On Thursday, advocate Mike Hellens, for Ajay Gupta, said the Guptas would only be willing to testify before the commission if it went to Dubai where they reside, or set up a meeting location outside South African borders, or be allowed to testify via a video link.
Hellens said the controversial brothers, who are accused of using their proximity to former president Jacob Zuma to influence cabinet appointments and state procurement, were scared of being jailed.
“They have a reasonable apprehension that the police in the form of the Hawks, with their powers of arrest and investigation, coupled with the National Prosecuting Authority’s power to decide to arrest have been demonstrably recklessly wielded against their companies and individuals that represented their companies.
“They have no confidence that the same would not happen to them, “ Hellens said.
On Thursday the commission heard a number of applications of leave to cross-examine witnesses by implicated individuals, including the Guptas.
Hellens said the commission would have deprived itself of evidence of the very object of the inquiry, the Guptas if it did not allow the brothers to participate.
“The commission should find it inconsistent with any principle of natural justice that a party affected or implicated by the evidence should not be entitled to cross-examine.
“The commission should find it nearly impossible to conclude that a valid finding or report would ever be made by it both in part or in whole on evidence which has not been tested,” Hellens said.
The Guptas intend to cross-examine former cabinet spokesperson Themba Maseko and former ANC MP Vytjie Mentor who implicated them when they testified before the commission, which is chaired by Deputy Chief Justice Raymond Zondo.
Zondo asked if there was a lawful reason for the Guptas’ refusal to come back to the country and appear before the commission, and accused them of wanting to participate in the commission on their own terms.
Hellens said: “If the pursuit of truth is to be aided by their participation, albeit in the terms they have suggested, it remains a value judgement which you wish to conduct.”
Zondo said the Guptas would not be deterred from refusing to answer questions if they were allowed to testify from Dubai.
He has reserved his decision on the application, which is opposed by the commission’s legal team.
Controversial businessman Fana Hlongwane, who was implicated by former deputy finance minister Mcebisi Jonas, has been granted leave to cross-examine him and has agreed to also take the stand.