Ajay Gupta must be allowed to cross-examine state capture inquiry witness, his advocate says
Mike Hellens says the Zondo commission cannot make valid findings without allowing cross-examination‚ as it is a ‘tool to test the veracity and reliability’ of evidence
Ajay Gupta’s lawyers are arguing that there are "sharp differences" between the family patriarch’s account of his alleged meetings with key state capture inquiry witnesses and their evidence.
They argue that he must be allowed to cross-examine the witnesses who implicate him, if the Zondo commission has any hope of getting to the "truth" of their claims.
On Thursday, advocate Mike Hellens SC argued that the commission could not make valid findings without allowing cross-examination‚ as it was a "tool to test the veracity and reliability" of evidence.
Despite Releasing a statement criticising Phumla Williams as a liar‚ Faith Muthambi has not applied to cross-examine her
Hellens further argued that the witnesses who implicated the Guptas in wrongdoing should not be informed of the guptas’ responses to their testimony, so that they did no have the chance to alter their testimony.
"If the witness is not put under cross-examination in the normal way… he or she has the full luxury of adjusting her evidence‚" he said.
Hellens added: "We would have to put the version of Mr Gupta to the witness."
Deputy chief justice Raymond Zondo indicated that‚ while Hellens "may be right"‚ "other factors need to be taken into account. For example‚ a witness who may be honest but is mistaken."
Zondo said in such a scenario‚ the "honest witness" — upon being advised of the implicated person’s version — could admit that they had made a mistake and "save the commission a great deal of time".
Hellens responded: "There is no special magic about this forum that would make a witness admit that they had make a mistake".
Hellens is arguing for Ajay Gupta’s lawyers to be allowed to cross-examine former government communications head Themba Maseko and former ANC MP Vytjie Mentor. He has previously represented former deputy finance minister Mcebisi Jonas‚ and so will not argue Ajay Gupta’s application to cross-examine Jonas.
Instead‚ advocate Dawie Joubert will bring that application on behalf of Ajay and Rajesh Gupta‚ and former president Jacob Zuma’s son, Duduzane Zuma.
According to Hellens‚ Ajay Gupta disputes "the whole" of the affidavit given by Maseko.
Zondo still needs to decide whether implicated parties will themselves need to testify. At the beginning of Thursday morning’s hearing‚ he made it clear that he had never said that "implicated persons who’d apply to cross-examine would have to undertake to give evidence".
While this was the stance of the inquiry’s legal team‚ Zondo said "it is a matter that will still be argued".
Advocates for the Guptas‚ Duduzane Zuma‚ controversial arms deal adviser Fana Hlongwane‚ former public enterprises minister Lynne Brown‚ Gupta media owner Mzwanele Manyi‚ Zuma’s former PA Lakela Kaunda and two Hawks officials are applying to cross-examine Jonas‚ Maseko‚ Mentor and acting government communications head Phumla Williams.
Despite releasing a statement criticising Williams as a liar‚ former communications minister Faith Muthambi has not applied to cross-examine her.