Believed to be holed up in Dubai while navigating Magnitsky Act sanctions, Gupta Inc’s Salim Essa will have to put his money where his mouth is.

That is, if he hopes to get the State Capture commission’s report reviewed and set aside.

The State Attorney, representing the State Capture commission and its chairman, Judge Raymond Zondo, wrote to Essa’s lawyers on 18 October requesting that he puts up R5-million as security for legal costs which the State might incur in the event of a successful legal challenge to his application.

Having fled South Africa in the wake of the #Guptaleaks in 2017, Essa has said he has no intention of returning — making the prospect of recovering taxpayer funds highly improbable should the matter ever go to trial, and he loses.

Essa scoffed at efforts to secure his attendance at the Zondo commission’s public hearings that ran for more than three years, and yet, in August this year, filed an audacious high court application to review all six parts of the report as they relate to him.

Read more in Daily Maverick: “Gupta chief lieutenant Salim Essa emerges from the Dubai shadows to challenge State Capture report”

The commission is opposing Essa’s application but has not yet filed its answering affidavit. 

Daily Maverick’s own inquiries suggest this may be, in part, due to silence from Essa and his lawyer, David Swartz.

Swartz, as recently as 30 September, confirmed to Daily Maverick that he is acting for Essa. However, the Johannesburg-based attorney has since ignored questions sent by Daily Maverick via email and WhatsApp, so it is unclear whether there has been a change in Essa’s legal representation.

Accused number 13

An important development since Essa filed his review application is that he is now a wanted man, as one of 18 accused in a criminal case linked to Transnet’s acquisition of 1,064 locomotives.

The Investigating Directorate of the National Prosecuting Authority (NPA)  added him to the long list of accused who face charges of fraud, corruption, money laundering and contravening the Public Finance Management Act.

Read more in Daily Maverick: “McKinsey and ex-director Vikas Sagar added to Transnet graft case linked to State Capture”

His co-accused — including global consulting firm McKinsey & Co, former Transnet executives Brian Molefe and Anoj Singh, and businessmen Niven Pillay, Litha Nyhonyha and Eric Wood — have already appeared in the Palm Ridge Specialised Commercial Crimes Court and are out on varying amounts of bail.

The NPA confirmed that a warrant for Essa’s arrest has been issued. 

Read more in Daily Maverick: “ ‘We’ve got this,’ says NPA as 14 October deadline looms for Transnet indictment”

The controversial businessman is known to have relocated to Dubai roughly five years ago, but has been keeping a very low profile, especially after the US Treasury slapped him and Gupta brothers Ajay, Atul and Rajesh with Magnitsky Act sanctions in 2019. 

Read more in Daily Maverick: “Guptas join a cast of international villains ensnared by US sanction law”

Papers filed at the Johannesburg High Court did not provide an address for Essa, instead listing the office address of his South African lawyer.

The South African government would need to apply for an Interpol Red Notice for Essa to be located and arrested in order to trigger an extradition application.

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His former partners, Atul and Rajesh Gupta, were arrested on Interpol notices earlier this year and UAE authorities are currently processing South Africa’s request for their extradition. 

Daily Maverick previously reported on Essa’s application, one in which he claimed the State Capture commission had failed to seek his views on the proposed findings and that it had released the report without having afforded him a meaningful opportunity to respond to the allegations. 

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 offered 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, he declined the commission’s request to do so under oath.

At the weekend, President Cyril Ramaphosa submitted to Parliament the Cabinet’s response to the recommendations of the Zondo commission. DM