If they were so desperate to give their version of events, the Gupta brothers should return to South Africa to testify at the Commission of Inquiry into State Capture, Deputy Chief Justice Raymond Zondo said yesterday.
Responding to a legal argument by Ajay Gupta’s senior counsel, Mike Hellens, who has maintained his client could face police arrest upon arrival in the country when coming to give evidence to the inquiry, Zondo said if the brothers wanted to clear their names, the only avenue would be to present themselves physically before the commission.
Ajay is among individuals implicated in evidence presented to the commission now applying for leave to cross-examine witnesses Mcebisi Jonas, Vytjie Mentor and Themba Maseko, who have testified about the Gupta family’s plan to fleece public money and influence Cabinet appointments.
Said Zondo: “If they came back to South Africa, they could clear their names but they have decided to take themselves out of the country. They are not prepared to come back because of fear of arrest and they have said the Hawks and the NPA (National Prosecuting Authority) are incompetent.
“They want participation in this commission to be on their terms – either we go to them or use a video link. Do they have a legal reason not to come back to South Africa?”
Hellens responded: “They have a reasonable apprehension that police wield power. They have no confidence in the police. Their attitude is that they cannot come to South Africa to appear before this forum.”
“They want to testify in person in another country or by video link if deemed appropriate and that evidence will be broadcast in South Africa. There is a warrant out for their arrest but no one has seen the warrant. They have no clarity that they are fugitives.”
Hellens cited the Bloemfontein High Court ruling earlier this year, in which the Guptas won a major legal battle against the state, which led to the Asset Forfeiture Unit being ordered to unfreeze R250 million in family assets as illustrating incompetence in the police investigation.
The court found no reasonable basis to believe Gupta family members and their associates were involved in money laundering and fraud linked to the Estina Dairy project.
Zondo said, “If an independent judiciary found in their favour, they should not fear anything. If you have incompetent Hawks and NPA, as your clients claim, doesn’t logic say you have good prospects because they will mess up, and that you will find yourself out of custody soon? That should mean you would have reasonable grounds to be released.”
Hellens replied: “We have experience of having been refused a docket. You cannot challenge arrest until you have access to the docket, meaning you can be in custody for a long time.”
While he granted former president Jacob Zuma’s aide Lakela Kaunda, NPA advocate Alouis Mtolo and businessperson Fana Hlongwana leave to cross-examine witnesses at the commission, Zondo reserved judgment on Ajay Gupta, Rajesh Gupta and Duduzane Zuma.
The commission will resume hearings on Monday.