Raymond Zondo state capture report ‘errors’ won't affect Gupta mine litigation

Chief Justice Raymond Zondo. Picture: Timothy Bernard African News Agency (ANA)

Chief Justice Raymond Zondo. Picture: Timothy Bernard African News Agency (ANA)

Published Sep 13, 2022


Pretoria - Chief Justice Raymond Zondo’s work as State Capture Commission chairperson over the past four years at the cost of more than R1 billion has come under public scrutiny following reports that he intends to ask the lower courts to allow him to make “corrections” to his final report.

This comes after legal consultations by implicated individuals who have publicly stated their intention to have the report reviewed and set aside in the courts of law.

However, weekend reports suggesting that the Constitutional Court boss feels there are errors he needs to correct has caused a storm of scathing opinions on social media.

Many wondered if the leader of the South African judiciary was not acting on external influence to alter his anti-corruption findings.

The National Prosecuting Authority (NPA) Investigative Directorate has, in the meantime, petitioned the Gauteng High Court, Pretoria, to allow its officials to use evidence that was led at the State Capture Commission to make a case for the forfeiture of a Gupta-owned mine in Hendrina, Mpumalanga.

In March, the NPA was granted a preservation order against the current owners of Optimum Coal Mine and Optimum Coal Terminal, Tegeta.

The order meant that the Gupta-owned mine’s assets could not be disposed of in any manner save through a court order, especially now that the NPA has approached the same court seeking a forfeiture order, which will see the state taking over the mine.

All this legal wrangling is based on revelations that came out of the State Capture Commission.

Zondo found that the Guptas had orchestrated an elaborate scheme in which the once Glencore-owned mine was unlawfully sold to Tegeta.

Deputy National Director of Public Prosecutions Juliana Rabaji-Rasethaba, argued in papers filed in the high court that the sale of Optimum to the Gupta family was “a crime itself”.

She said Tegeta hand-picked Eskom executives to facilitate hundreds of millions in transactions that guaranteed the Guptas ownership of the mining company.

“The hand-picked executives, therefore, used their influence over other employees of Eskom to secure two transactions for the benefit of the Guptas. They did so in direct conflict with their duties to serve the best interests of Eskom,” she said.

Rabaji-Rasethaba further requested that evidence presented at the State Capture Commission be accepted as true without necessarily re-examining the witnesses who gave oral testimony.

“The admission of the evidence is in the interest of justice because there would be an unnecessary duplication of costs and resources if every one of the witnesses who testified under oath during the commission’s proceedings would have to be subsequently approached so that an affidavit could be procured from those witnesses simply to confirm the evidence that they have already given under oath,” Rabaji-Rasethaba said.

Yesterday, the NPA’s Investigative Directorate spokesperson Sindisiwe Seboka told the Pretoria News that Zondo’s intention to correct the report would have no bearing on their case against Tegeta or the creditors who sought to rescue the mine following its closure amidst the scandals that led to the Gupta brothers fleeing the country.

“One must distinguish between evidence, such as witness statements under oath, documents, forensic evidence, etc, and the findings based on all the evidence presented at, for instance, a court or commission.

“The findings are an interpretation of the evidence measured against, for instance, the elements of a crime in a criminal case.

“Such judgment is always subject to appeal or review but not the affidavit of a witness,” said Seboka.

The NPA’s high court forfeiture application solely relied on affidavits presented at the commission, she said. “The NPA relies on evidence under oath, which was presented at the State Capture Commission. The fact that an affidavit was used at the commission does not change its value.

“The NPA does not rely on the report of Chief Justice Raymond Zondo, per se. It is highly unlikely that Justice Zondo will now regard an affidavit that he regarded as reliable as unreliable.

“However, if that is the case, it is up to the court in the Optimum matter to assess the evidence in light of all the facts before it in that case and make its own conclusion about the admissibility and value of the evidence.

“In view of this, the NPA will not require any recourse if the commission report is changed or not since it never relied on the report as evidence,” said Seboka.

The Department of Justice, Correctional Service and Constitutional Development said the Gupta brothers remain behind bars in Dubai awaiting the finalisation of extradition arrangements between the United Arab Emirates and South Africa.

Some opposition politicians have labelled the sudden arrest of the Guptas a misdirection tactic to sway the attention of South Africans from the looming farmgate scandal President Cyril Ramaphosa faces.

Spokesperson in the Office of the Chief Justice, Lusanda Ntuli, did not respond to questions sent to her regarding the correction of errors in the Zondo report.

Pretoria News