The Department of Justice says it has no intention of wasting taxpayers time or money on what it bills an “inconsequential” and “vacuous” court bid by Salim Essa to set aside the State Capture Report. 

Essa – a de facto fugitive – is wanted on criminal charges flowing from Transnet’s 1,064 locomotive deal. He launched his application to review and or set aside the State Capture Report from abroad last year.

Daily Maverick first revealed in October 2022 that the State Attorney had asked Essa to put up R5-million in security for costs in terms of the rule of the court. 

The Department of Justice says it instructed the State Attorney to oppose Essa’s application on behalf of the Zondo Commission. 

In a written response to questions from Daily Maverick, it now confirms that Essa has thus far failed to tender security and as such it will not entertain his application.  

Although this means the commission has not filed an answering affidavit, Essa has filed heads of argument in the hope of pushing his case through on the unopposed court roll. 

The controversial businessperson is named more than 800 times in the State Capture Report. He is implicated in tainted deals at Eskom and Transnet and played a key role in the Gupta family’s acquisition of Optimum coal mine. 

Essa’s application, filed in August 2022, sets out his claims that he has not been given a proper opportunity to respond to some of the highly damaging allegations against him. 

The Department of Justice says since he has failed to cough up security or to launch a legal challenge to this request, Essa’s application will be regarded as inconsequential and vacuous. 

Security, it says, is a way to protect a defendant – the State in this case – from vexatious litigation, especially in circumstances where an applicant has questionable financial means.

It is also called for instances where an applicant is a fugitive from justice, thus rendering the recoverability of costs in due course a matter of concern. 

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Wanted

Essa, though not officially declared a fugitive, is wanted on criminal charges that stems from Transnet’s 1,064 locomotive deal. He continues to hide his precise whereabouts and a warrant for his arrest, though issued in South Africa, is yet to be executed. It is understood that Essa needs to be located first. 

He is believed to be living in Dubai, where two of the three Gupta brothers are the subject of an extradition hearing. Essa’s Zondo review bid may also be affected by Atul Gupta’s unsuccessful bid to litigate against the Department of Home Affairs. 

The high court in Pretoria recently labelled Atul Gupta a fugitive from justice, finding that he therefore has no legal standing to litigate in the country’s courts. The Gupta brother had gone to court as part of his efforts to obtain a new South African passport. 

It is anticipated that Essa will eventually join several other high-profile accused in the dock in the Transnet case. They include former Transnet bigwigs Brian Molefe and Anoj Singh as well as the owners of Regiments Capital and Trillian Capital Partners, Niven Pillay, Eric Wood and Litha Nyhonyha. 

Essa extradition?

Daily Maverick asked the National Prosecuting Authority (NPA) whether South Africa had applied for an Interpol Red Notice to locate and possibly seek Essa’s extradition.

In response, it said that it is engaged in processes to secure his attendance at court. It added that details of such engagements were not for public consumption.

Importantly, even once located abroad, South Africa would need to prove that the case Essa is wanted for in South Africa is an extraditable offence in that country.

In October last year, Essa’s lawyer, David Swartz, told Daily Maverick his client had left South Africa long before any criminal charge had come about. Swartz did not agree that his client was a fugitive. 

Daily Maverick understands that the arrest warrant issued in the Transnet case must be executed or served on Essa. Until he is definitively located, this is not possible. Repeated attempts to obtain comment from Swartz in recent weeks have gone unanswered. DM