Ajay, left, and Atul Gupta. Picture: MARTIN RHODES
Ajay, left, and Atul Gupta. Picture: MARTIN RHODES

Enabling the Guptas to testify from overseas would inevitably validate their criticism of local law enforcement as unreliable and incompetent.

Arguing against a request from the Guptas to testify in the commission of inquiry into state capture from Dubai via video link, Advocate Azhar Bham SC — representing former government communications head Themba Maseko — labelled their plea as "absurd".

"They want you to categorise the law enforcement agencies, and by extension the court system, as unreliable, incompetent and whatever unfortunate words were used. The moment you do that, you might as well give up the commission now, because you can never refer matters that require further action to those very law enforcement agencies. It becomes absurd," Bham told commission chair deputy chief justice Raymond Zondo.

Zondo reserved judgment on the Guptas’ application after they made it clear that they will only give evidence outside SA, by video link or through the inquiry travelling to them, because they "mistrust" the Hawks.

His ruling will determine whether the family continues to participate in the inquiry – and if so, how. Gupta lawyer advocate Mike Hellens SC argued that if Zondo rules against his clients, claims made against them by Maseko, former deputy finance minister Mcebisi Jonas and former ANC MP Vytjie Mentor will be absent from the inquiry’s evidence and findings.

However, Zondo has repeatedly queried whether the Guptas – whose patriarch Ajay has been defined as a "fugitive from justice" by the Hawks – has any lawful reason to avoid giving evidence in SA, and contended that they are only willing to participate in his inquiry "under their own terms".

"One is bound to ask the question: can you, on the one hand, run away or flee from a legal system and its institutions, but at the same time, want the benefits that legal system confers on those that participate?

"Can you do both? Can you say on the one hand I don’t like this system for whatever reason and you flee, but then you say, but actually it’s got some benefits … it allows cross-examination, I want to get that benefit," Zondo asked.

Former president Jacob Zuma’s son Duduzane, a close associate of the Gupta family, has also asked to cross-examine Jonas about his claims that Duduzane had set up a meeting at which a Gupta brother tried to bribe Jonas into taking the position of finance minister. Duduzane does not want to testify about Jonas’s claims, because he has been charged with corruption in relation to the claims.

Justice Zondo was unimpressed. "Why should there be some people who don’t seem to want to let what happens to everyone happen to themselves as well, subject themselves to the same rules as everybody in the country are subjected to?" Zondo asked Duduzane Zuma’s advocate Dawie Joubert.

Zondo’s concerns have not only been echoed by lawyers representing state capture witnesses Jonas, Maseko and Mentor, but the inquiry’s legal team leader Vincent Maleka.

On Thursday Maleka argued that the Guptas were trying to use the inquiry to "proclaim their innocence" and urged Zondo to dismiss their applications to cross-examine Jonas, Mentor and Maseko. He slammed the Gupta brothers’ promise to testify at the commission from overseas as "worth nothing".

"They simply want to use the commission processes to proclaim their innocence," he added. "We submit that the type of the undertaking through the heads of arguments by Gupta brothers, is not worth the pain because they may wake up and decide that they are not going to participate in the commission," Maleka said.

He further argued that there were cost implications to send the commission’s legal team abroad, and as things stand, financial resources are already scarce.

"Even if we take that proposition on face value, we know that, ‘the road to hell is paved with good intention’ and we don’t have to risk that road," said Maleka.

Zondo agreed and said it would be quite a "huge operation" because it meant that more money would be required.

However, Hellens sought to counter these arguments by denying Maleka’s assertions that his clients’ responses to the evidence against them is based on nothing but "bald denials".

Hellens maintains that the Guptas have "substantive responses" to the claims made against them, and must be given the chance to provide this evidence, if the Zondo inquiry has any hope of "getting to the truth" about alleged state capture.

Zondo said he hopes to rule on the Gupta and Duduzane’s cross-examination applications next week.