As Atul and Rajesh Gupta sit in police custody in Dubai, it would appear that Salim Essa — the man widely regarded as their former chief lieutenant — walked into the South African consulate in that country last Wednesday, 27 July.

Essa popped in only to sign an affidavit for legal proceedings he has launched against the Judicial Commission of Inquiry into State Capture and the commission’s chairman, Chief Justice Raymond Zondo. 

On 2 August, lawyers filed his high court application in South Africa for a review of all six volumes of the State Capture report. Alternatively, Essa wants all findings and/or recommendations as they relate to him to be set aside on procedural and constitutional grounds. 

The merits of his case are likely to be tested against responses to be filed by the commission and/or Zondo, who have until next month to indicate whether they intend to oppose his application. 

Daily Maverick understands that Essa’s bid brings to five the number of court reviews sought by various implicated parties to date. Arguably one of the most important characters in the State Capture saga, Essa’s association with the Gupta enterprise dates back more than a decade. 

He is considered to be a central figure in an October 2012 meeting at which an agreement was struck to extract alleged kickbacks from deals through a partnership with the global consulting firm McKinsey & Co at Transnet.

And while he has largely been off-grid in undisclosed locations abroad, former business associates like Kuben Moodley, Eric Wood, Niven Pillay and Litha Nyhonyha have been battling criminal charges and costly civil litigation back home. 

Now, after more than three years of televised public hearings and unsuccessful attempts to secure his attendance at the commission, Essa has accused it of making findings or recommendations against him without having informed him of the content of the State Capture report before its release. 

He says he features 806 times across the six reports handed to President Cyril Ramaphosa between January and June 2022.

Procedural issues

According to Essa, the commission had not asked for his views on the proposed findings and released the report without affording him any meaningful opportunity to respond to the allegations against him. He raises several procedural issues around the commission’s efforts to have him physically appear before it, saying no such rule existed.

Labelling the State Capture report unlawful, irrational and arbitrary, Essa also contends that Zondo had conducted the judicial inquiry without an open and inquiring mind and that he had acted beyond the terms of reference.

Annexures attached to his 23-page affidavit suggest that Essa was legally advised throughout his dealings with the commission between March 2019 and November 2021.

The correspondence put up in support of his application cast him as “amenable” and “willing” to assist the commission, and confirm that Essa had refused to appear in person without a guarantee that he’d be able to cross-examine witnesses. But, when he finally did answer a set of questions in October 2021, Essa declined the commission’s request to do so under oath. 

His review application comes on the back of the arrest of Atul and Rajesh Gupta on Interpol Red Notices in early June. South Africa has submitted an official extradition application to the UAE in the hope that the pair can stand trial in two separate criminal cases.

Essa’s visit to the South African consulate would also have taken place 48 hours after Justice Minister Ronald Lamola and the National Director of Public Prosecutions, Shamila Batohi, announced that the Gupta extradition application (in both English and Arabic) had been sent to the UAE. 

Although implicated in a significant body of State Capture–related allegations, Essa is not currently the subject of any criminal charges. 

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The National Prosecuting Authority (NPA), in response to an inquiry from Daily Maverick on 27 July about whether Essa is regarded as a fugitive from justice, simply said: “The NPA cannot be drawn into responding to the specifics of whom we are investigating. However, the public can rest assured that we are working around the clock to ensure that those responsible for State Capture have their day in court.”

Like the Gupta brothers, Essa is under international sanctions imposed by the UK in 2021, as well as those imposed by the US under its Global Magnitsky Act in October 2019.

His exact location in recent years has been kept under wraps and the only address referenced in his affidavit filed at the Johannesburg high court this week is that of his lawyer’s office in Melrose Estate, Johannesburg. 

Essa says he initially received several 3.3 notices — documents issued to implicated parties — from the commission informing him that he had been implicated by witnesses scheduled to testify; that he was invited to attend to give evidence and to apply to cross-examine those witnesses. However, having “critically analysed” such evidence, he concluded that it was unsupported hearsay evidence and therefore did not take the commission up on the invitation. 

Then, in October 2019, the commission, through Essa’s then-lawyer, asked if he would be willing to answer certain questions. He says he was “of course more than amenable to assist” and instructed his attorney, the late Nigel Little, accordingly. 

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Essa claims they did not hear back from the commission until January 2020, when the commission’s Denel workstream contacted him for answers to certain questions. But given the extensive nature of that inquiry, he was not able to deal with it due to a tight 10-day deadline. He does not say whether he asked for an extension or if the deadline ultimately affected his willingness to help the commission.

With no further communication, the commission again wrote to his lawyer in October 2020 — this time to express disappointment that Essa had not responded to the Denel questions. This letter also served to advise him that he had a right to be heard, but that there would be no allowance for his appearance in the hearing schedule down the line.  

Essa says he found this letter from the commission disingenuous.

This was because by then it had been determined that implicated persons would not be able to cross-examine witnesses unless they were willing to appear personally and physically. He argues that the commission had tried to use the threat of adverse findings as a means to coerce him to appear before it. 

“Given that I resided in Dubai, UAE (with limited ability to travel to South Africa) and given that the Second Respondent [Zondo] would not allow me to cross-examine those witnesses that were giving patently false evidence about me, responding to the 3.3 notice would have been of absolutely no assistance.”

He says his lawyer communicated this in a letter to the commission and he kept on receiving 3.3 notices thereafter. 

Eventually, in April 2021, the commission asked Essa to commit to a fixed date for his appearance. 

Since he did not secure an undertaking that he would be able to cross-examine witnesses, Essa says the parties eventually agreed to him responding to written questions. Those answers were provided to the commission on 8 October 2021. 

The commission confirmed receipt on the same day but immediately flagged the fact that his submission did not include an affidavit and informed Essa that various attachments would therefore be of no evidentiary value. 

What followed was a firm letter from Essa’s lawyers on 13 October 2021 confirming that he “will not be submitting an affidavit”.

The commission, the letter stated, was misguided in its belief that he was duty-bound to submit an affidavit and emphasised his view that its processes were flawed, unconstitutional and tantamount to a fishing expedition. 

“Our client is not intimidated by the commission and his involvement in the inquiry is voluntary and at his election,” the letter reads. “As you will recall, it was our client who approached the commission, not the other way around.”

Essa, the letter states, had done that to counter “false statements and untested evidence” that had caused damage to his reputation.

The letter also threatened the commission with “a massive damages claim”.

Late last year, amid rumours that the commission was about to release the report, Essa’s lawyer fired off a letter demanding the commission provide him with an undertaking that the report would not contain any adverse findings against him. He wanted the report to “unequivocally” state that no such findings could be made (against him). 

Essa says the commission ran for 429 days, during which evidence was presented as an almost fait accompli of his guilt. Ultimately, he says, the questions put to him were broad and vague and had, in some cases, not related to the ultimate findings (against him) contained in the report. 

Those include recommendations for law enforcement to investigate him with a view to prosecuting him in relation to the Gupta purchase of Optimum Coal Mine, supplier development payments on Transnet contracts and payments to Trillian, among other things. 

Essa says he was “shocked” at being implicated in this regard in the report, partly because he had not even been asked about some of it.

Essa has been the subject of multiple investigations relating to his role in alleged kickbacks extracted from deals with state-owned companies, some of which had flowed through alleged Gupta-linked front companies like Homix. 

He also features centrally in other tainted contracts involving Regiments Capital, Trillian Capital Partners and McKinsey (the international firm has to date repaid close to R2-billion to Eskom and Transnet as a result of some of those deals). DM