Ajay Gupta’s lawyer says the state capture commission of inquiry cannot make “objective findings and conclusions” if he’s not afforded the right to cross-examine two witnesses that have implicated him in damning allegations of fraud and corruption.
However, if Ajay, the Gupta family patriarch, is granted the right to cross-examine witnesses, he has thrown a major caveat.
He is not prepared to appear in person before the commission in Johannesburg, but is prepared to give his version of events to the commission’s evidence leader in another location outside South Africa or via a video link.
Advocate Mike Hellens, acting for Ajay, says Ajay fears he might be arrested upon arrival in South Africa as there is no clarity on whether he has been declared a “fugitive from justice” by the “incompetent and reckless” Hawks and National Prosecuting Authority (NPA).
Hellens says that he has failed to determine what the Hawks and NPA want to charge Ajay for or if there is a warrant for his arrest. He suspects that South Africa’s law enforcement agencies want to charge Ajay in connection with the Vrede dairy farm project in the Free State, which allegedly benefited the controversial Gupta family over farmers in the region.
“We are told that there is a warrant of arrest out for Ajay but no one has seen the affidavit from the Hawks. He won’t expose himself to the Hawks’ reckless behaviour and NPA’s unbridled power and incompetence,” says Hellens.
Essentially, Ajay wants to participate in the commission – chaired by Deputy Chief Justice Raymond Zondo – on his own terms. Hellens was submitting heads of arguments on Thursday for Zondo to make a decision on whether implicated individuals could cross-examine witnesses, and whether they too may be required to take the stand at the commission.
Ajay wants to cross-examine former government spokesperson Themba Maseko and ex-ANC MP Vytjie Mentor at the commission to test the “reliability and accuracy” of their evidence. Maseko accused Ajay of pressuring him to channel government’s R600 million annual advertising budget to the family’s media entities. Meanwhile, Mentor says Ajay offered her public enterprises minister post in September 2010.
Zondo raised concerns about limitations of receiving evidence via video link and whether the commission’s integrity might be compromised if it allows a possible fugitive to give evidence.
The commission’s legal team is expected to oppose Ajay’s terms.
Advocate Vincent Maleka, who acts for the commission, is pushing for implicated individuals to also be cross-examined and take the stand at the commission.
“The privilege to cross-examine comes with responsibility and they should also be cross-examined to test their version of events,” Maleka argued last week.
Ajay has set other terms and conditions including Maseko and Mentor not being afforded the opportunity to see an affidavit setting out his version of events before they are cross-examined.
Hellens says giving Maseko and Mentor an opportunity to see Ajay’s affidavits beforehand would give them time to prepare their answers to questions and the “luxury” to change or adjust their evidence. “The purpose of cross-examination is to test the accuracy and reliability of evidence… Precognition would blunt the sharpness of the tool of cross-examination… and its element of surprise,” he says.
The inquiry continues.
Republished from Moneyweb