Salim Essa says he is willing to put up a “reasonable amount” of cash to keep alive his legal challenge of the State Capture report. He says the R5-million demanded by South Africa’s courts is “patently extortionist”.

Essa, a key player in the Gupta brothers’ network, filed a high court application last August to overturn the report as it relates to him. The State Capture Commission, represented by the State Attorney, countered with an interlocutory application for the security of costs amounting to R5-million.

This is partly because the commission deems Essa a fugitive from justice, making the chances of recovering taxpayer funds a concern should he lose the case.

Essa is opposing the application for security for costs and has submitted a 23-page answering affidavit in which he challenges the commission’s contention that he is a fugitive.

He also labels as defective and “patently extortionist” the commission’s R5-million demand for security and says it is aimed at shutting the door on his review bid.

It would be more apt, he says, for the registrar of the high court to determine a reasonable amount, one that he would be willing to abide by.

Besides, says Essa, the State Attorney cannot seriously contend that it and its counsel will charge R5-million to argue the review application. “If that is the contention, it constitutes the grossest form of wasteful expenditure of state money that one can imagine,” says Essa, ironically a man accused of raking in millions of rands from questionable deals involving state-owned companies.

Essa says that, in order to be labelled a fugitive from justice, he must have deliberately placed himself beyond the jurisdiction of the court to evade justice.

‘A false distortion of the facts’

The commission, Essa says, argues that his move to Dubai was tantamount to him refusing to subject himself to legal process in South Africa.

“This is a false distortion of the facts,” he contends.

Essa confirms that he moved to Dubai in August 2017, before the establishment of the commission. This was roughly three months after the #GuptaLeaks emerged into the public domain.

It was five months before former president Jacob Zuma — acting on a 2016 recommendation of former Public Protector Thuli Madonsela — established the State Capture Commission and appointed then Deputy Chief Justice Raymond Zondo as chairperson.

“I did not move to Dubai to avoid subjecting myself to the legal process of South Africa. Rather, I moved there because I felt that there would be better business opportunities for me in Dubai than in South Africa; for a safer and better life for my family and I felt that my children would enjoy better schooling and university in Dubai.”

His move to Dubai, says Essa, had nothing to do with evading justice or avoiding any legal scrutiny. He has never hidden his local address from anyone, he says.

“They are well aware that I live in Dubai, and where to find me.”

He adds it is a “blatant mistruth” that he has wilfully avoided the law by fleeing South Africa.

“No process of law has ever been issued against me. I was never served with a subpoena legally requiring me to give evidence and, accordingly, cannot be accused of contemptuously refusing to give evidence at the commission.”

Neither has he ever been criminally charged, nor had any civil claims been instituted against him in relation to any alleged State Capture, he asserts.

It appears that Essa is relying on the fact that the current criminal and civil cases against him were launched after his departure from South Africa.

He is listed as the 12th defendant in a multibillion-rand civil claim filed by Eskom and the Special Investigating Unit against the Guptas and various former executives or board members of the parastatal in 2020.

In addition, the National Prosecuting Authority declared him an accused person in a criminal case flowing from Transnet’s notorious “1,064” locomotive transaction in late-August 2022.

The criminal case was launched several weeks after Essa filed his application for a review of the State Capture report.

He says it appears that the commission’s argument that he fled the country is based on media reports alleging his involvement in State Capture.

(Media reports or not, Salim Essa was sanctioned by the US Government under the Global Magnitsky Act in 2019 – Ed)

Guptas join a cast of international villains ensnared by US sanction law

In his main application to review or set aside the State Capture report, Essa argues that the commission acted beyond its terms of reference and that it failed to act with an open and enquiring mind.

The final report, he argues, makes findings or recommendations against him based on allegations that were never put to him. Like the Guptas, Essa did not appear before the State Capture Commission, but answered a limited set of written questions.

The final report recommended law enforcement agencies conduct further investigations with a view to prosecuting Essa.

His case is among a handful of reviews of the State Capture report.

Others include those of the minister of mineral resources and energy, Gwede Mantashe, former State Security Agency boss Arthur Fraser and former Eskom acting CEO Matshela Koko. DM168

This story first appeared in our weekly DM168 newspaper which is available countrywide for R29.