On Thursday when the chair of the State Capture Commission, Deputy Chief Justice Raymond Zondo, dismissed the application of the Gupta brothers to cross-examine witnesses via video link, he seemed to have sounded the death knell on their influence over government departments in the country.
Invoking the Commissions Act, Zondo pointed out that a witness “who is thousands of kilometres away” cannot be said to have appeared before his commission and said “once they are within the country, I will have no difficulty granting them the right to cross-examine any witness”.
Through their lawyer, Ajay and Rajesh Gupta have indicated to the Zondo commission that they are willing “to be cross-examined before the commission without physically being in the country”.
“They say they are presently in the United Arab Emirates,” Zondo said before making his decision.
The Gupta pair, according to information before the Zondo commission, have no intention of ever returning to South Africa. Said Zondo: “The reason why they would not return [was that] they are afraid the Hawks would arrest them on the basis of incompetence on the part of the Hawks, and they may also be criminally charged by the NPA, which they say is also incompetent.”
There was a time when the Guptas would have prevailed.
In the words of former GCIS chief executive, Themba Maseko, who implicated the Indian brothers in his testimony before the commission, “they were surprised themselves when they realised how easy things were for them”.
But it would appear the Zondo commission has put paid to them lording over government and its officials. Unless he exercises his discretion and rules otherwise, those implicated in the commission had no right to cross-examine witnesses, Zondo said, throwing the book at the once influential Guptas.
The Guptas had applied to cross-examine Maseko, former deputy finance minister Mcebisi Jonas and former ANC MP Vytjie Mentor who each told the commission they were summoned to the Gupta mansion in Saxonwold, north of Joburg.
Jonas testified - repeating a claim he’s long made - that he was offered his principal’s job and an on-the-spot R600000 bribe which would then pave the way for a hefty R600 million reward if he “worked with” the Guptas who bragged, in his presence, that they had made Duduzane Zuma, the son of the former president, a billionaire.
Mentor told the commission she was also offered the ministerial position at public enterprises if she cancelled the lucrative SAA route to Mumbai for the benefit of Jet Airways, a Gupta cash cow.
She said when she appeared recalcitrant, then-president Jacob Zuma emerged from one of the many rooms in the mansion to coax her into playing ball. In his testimony, Maseko had told how, addressing him in Zulu, Zuma had implored him to assist the Guptas.
The Guptas would like to take issue with all three individual accounts, but from a safe vantage point outside the country. Zondo would have none of it.
He said the brothers “are prepared to appear before the commission at a venue that may be agreed upon”, that they are prepared to give “their evidence from outside of the country”.
“In a supplementary affidavit, Ajay and Rajesh say they respect the laws of this country. They have no complaints about the South African legal system as such. Their complaint seems to be confined to how the Hawks and the NPA exercise their power.”
Advocate Vincent Maleka SC told the commission that the Guptas were fugitives from justice, a description Zondo was somewhat reluctant to accept. Even as he evoked precedence on accused persons wishing to evade court processes, Zondo said, “they are not, strictly speaking, fugitives from justice”. But he remains dissatisfied that the Guptas wished “to stay out of the reach of our legal system”.
Zondo said he was unable to follow the logic of their lawyer, Mike Hellens, why they accept the independence of the judiciary yet not be comfortable to subject themselves to court process. “Our legal framework and Constitution are among the best in the world.” Our courts have wide powers which they will not hesitate to apply to protect people who are victim to abuse, Zondo said.
Their reluctance to appear boggles the mind. Said Zondo: “The issue of this commission travelling overseas to hear their evidence must be rejected. I see no reason why the commission should incur such costs, so this suggestion is also rejected.”
If their side of the story is not heard, it will be primarily because they have elected not to return to this country, when they had no valid reason not to return, to a country whose laws they say they respect. Allowing them to testify via video link would mean the commission would be at their mercy if they testify from another country.
There was also the risk of them giving false evidence, he said. "If I were to accept the suggestion I would be creating two classes of witnesses, those who appear and those who don’t come before the commission," Zondo added. And he was not prepared to give the Gupta brothers special treatment.