Deputy Chief Justice Raymond Zondo. FILE PHOTO: Supplied

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Hawks’ Mnonopi withdraws application to cross-examine

JOHANNESBURG, August 6 – Suspended head of the Directorate for Priority Crime Investigation’s (known as the Hawks) Anti-Corruption Unit, Major General Zinhle Mnonopi, on Thursday withdrew her application to cross-examine former deputy finance minister Mcebisi Jonas at the state capture commission of inquiry.

Mnonopi’s legal representative Vincent Sewela told commission chairman Deputy Chief Justice Raymond Zondo that only the Hawks’ advocate Mandla Mtolo, implicated in former member of Parliament (MP) Vytjie Mentor’s evidence, wanted to cross-examine Jonas.

Zondo told Sewela to remind Mnonopi that she could be called to give evidence at anytime.

“I hope she appreciates that this [withdrawal of application] doesn’t mean that she might not be called upon to come give evidence, should I consider that she be called upon in terms of the regulations…I hope she knows that.”

Sewela told the inquiry that Mtolo was in possession of recordings of his meetings with Mentor.

According to Jonas’ testimony detailing an offer to become finance minister by Ajay Gupta and a R600 million bribe, Mnonopi insisted that the case be quashed as it was a “[Democratic Alliance] DA matter”.

He told the inquiry that Mnonopi wanted him to sign a false statement purporting that Jonas did not have the evidence, did not open a case with the police, and was not prepared to do so in future.

Jonas said this was all done in the presence of his lawyer, Max Boqwana. He said he refused to sign the letter and later sent the Hawks a legal statement on the details of his complaint against the Guptas.

The Hawks Godfrey Lebeya suspended Mnonopi following Jonas’ damning evidence.

Hellen told the inquiry that the Guptas will not travel to South Africa to experience more “incompetence and abuse of power” by the police and National Prosecuting Authority (NPA) and preferred to participate in the state capture commission of inquiry via video link.

He cited the Estina diary farm case that has recently been granted a lengthy postponement in the Bloemfontein Magistrate’s Court.

Hellens is representing the Gupta brothers’ nephew Varun Gupta, Oakbay CEO Ronica Ragavan and former Sahara executive and Gupta associate, Ashu Chawla.

“They were arrested by such incompetent people who have not worked out their case, so much so that [a] few weeks ago the State asked for a further postponement and now under section 242 a, of the Criminal Procedure Act, are on time limit to produce a case by [the] end of November, failing which the case will be struck off the roll on December 4,” Hellens said.

“Before one can vindicate themselves before judicial officers, you get subjected to all these awesome powers of the police and the NPA, and in the light of that reckless incompetence, they [Gupta family], declined to be put through that.”

Commission chairman, Deputy Chief Justice Raymond Zondo said it seemed the family feared being arrested once they set foot in the country.

“Isn’t it that if you get arrested, you have a remedy if there are no grounds for you to be arrested? You can approach the courts on an urgent basis… Isn’t [it] that if there are no grounds for your arrest and detention, any judge in this country will grant you a remedy?” Zondo asked Hellens.

“Now, if you have an incompetent [Directorate for Priority Crime Investigation, better known as the] Hawks, NPA as your client says, doesn’t logic say that then you have very good prospect that they will mess up, and if they mess up, then you will get an order from a judge and you will not spend time in prison?”

Hellens said it “is not as simple as that”.

“You do not get the docket until the case is completely investigated. In the case pending in Bloemfontein, we tried to get access to the docket to show that there is no case,” he said.

Zondo asked Hellens, that should he allow the Guptas to participate through video link from outside South Africa, how should he handle a situation where they refuse to answer certain questions.

Hellens replied: “It would bore very badly for them in terms of the commission terms of reference, if they decline particular questions. Your inference in pursuing the truth would be drawn from the inclination to answer questions.”

Zondo said it seemed the controversial family wanted to participate on their own terms. He said the fact that they were fugitives from justice was an important factor in determining whether to grant their application or not.

Hellens said there was no evidence that there is a warrant of arrest out for any member of the family.

Other accused in the Estina case are former Free State provincial government officials Sylvia Dlamini, Petre Thabethe and Takisi Masiteng, former The New Age newspaper executive Nazeem Howa and Estina director Kamal Vasram.

They are accused of fraud and corruption in which more than R200 million was allegedly defrauded from the Estina diary farm, a dodgy project by the Guptas and the Free State provincial government. The R200 million earmarked to benefit more than 100 emerging farmers through the Estina project was allegedly swindled in 2013 and ended up in various accounts owned and operated by the Gupta family.

At least R30 million of the loot paid for the lavish Gupta family wedding held in Sun City in the same year.

Hellens said the best way to get to the truth is for the commission of inquiry into state capture to allow cross-examination of witnesses as it is done in court trials.

Advocates for the implicated individuals were on Thursday arguing before commission chairman Deputy Chief Justice Raymond Zondo as to why they should be allowed to cross-examine witnesses on behalf of their clients. Hellens, on behalf of Gupta, wants to cross-examine previous witnesses – former government spin doctor Themba Maseko and ex-ANC MP Vytjie Mentor.

Hellens said Gupta has filed statements with the commission disputing Maseko and Mentor’s evidence.

”In considering request to cross examine witness, the commission is asked to consider the following – that the function of the commission is to establish the truth. Although the commission’s work is that of an inquiry and not a criminal trial, it has been shown that cross-examination is historically to be the best mechanism in testing the reliability and veracity of evidence tendered by witnesses,” said Hellens.

”Without cross-examination of contentious evidence the commission will be deprived of the essential tool of testing the evidence. The statement of Ajay Gupta raises clear disputed facts underpinned by his own evidence, and demonstrating the need to test the reliability of the witnesses that has given evidence before the commission.”

Furthermore, said Hellens, witnesses should not be consulted with prior to being cross-examined, as this would have the potential of enabling the witnesses ”to adjust” their evidence. Such an act would weaken the significance and power carried by cross-examination, he told the inquiry.

Mentor testified that she was offered a public enterprises minister post by Ajay Gupta, should she agree to cancel the SA Airways’ Mumbai route, while Zuma sat in the next room at the Gupta’s Saxonwold compound. Mentor told the commission she declined the offer. Gupta also allegedly offered Jonas a promotion to finance minister to replace Nhlanhla Nene, who was seen as an obstacle to the family who wanted to increase their rake-ins from government contracts from R6 billion to R8 billion. Jonas said the offer was accompanied by a R600 million bribe. He testified that turned down both offers.

Advocates for the Guptas, former president Jacob Zuma’s son, Duduzane, businessman Fana Hlongwane, former public enterprises minister Lynne Brown, former Zuma aide Lakela Kaunda and two Hawks officials are applying to cross-examine Maseko, Mentor, GCIS acting CEO Phumla Williams and former deputy finance minister Mcebisi Jonas.

The former president has not indicated to the commission whether he would want to cross-examine witnesses. (ANA)

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