Gupta business partner Salim Essa has approached the high court in Johannesburg for a review of the state capture commission's report, saying he was not properly approached for his side of the story and his constitutional rights have been violated.

On July 27, Essa deposed to a 23-page affidavit at the SA Consulate in Dubai in which he complains that he was treated unfairly and “parts of the report in which findings and/or recommendations are made in respect of me ought to be reviewed and set aside”.

Essa complains his name is mentioned 806 times in the report, the last volume of which was handed to President Cyril Ramaphosa in June.

He said he didn’t live in SA and the commission didn’t allow him to cross-examine witnesses from outside the country. He also complained that the report was "not objective".

“[The commission] precluded persons not physically present at the hearings from cross-examining witnesses. This fundamentally prejudiced me through no fault of my own — I do not live in SA and was prevented from attending the hearings as a result of the Covid-19 pandemic and limitations on international travel.”

Essa said he was invited to testify before the commission and received several rule 3.3 notices stating he would be implicated in testimony.

“I critically analysed all the alleged ‘evidence’ ... and concluded it was almost exclusively based on the hearsay allegations of implicated persons.” He said he, therefore, did not “deem it necessary to respond” to the notices or the commission’s invitation to testify.

“I was asked to answer certain queries raised by [the commission] and amicably and amenably agreed to do so.”

Then, he said, he didn't hear from the commission until about a year later when he received a list of questions. 

Those questions “essentially presume my guilt” and refer “to the untested and hearsay allegations of witnesses at the inquiry and premise the questions based on the correctness of these allegations”. In addition, he claims, he was only given 10 days to respond.

“The high-handed imposition of time constraints by [the commission] was unfortunate and created unnecessary animosity,” he says in his affidavit.

“There were 429 days of evidence led in the inquiry. Various evidence leaders ‘led’ (and I use that word very loosely) the evidence of witnesses throughout the course of the proceedings.

“It was clear, however, in the manner in which the evidence was led that the evidence leaders had spent considerable lengths of time consulting with the witnesses and coaching the evidence in order to advance a particular narrative to the [commission].

“Far from being a fact gathering exercise, the hearings turned into a ‘McCarthyite’ type witch hunt against those persons that had already been presumed guilty.”

In his report, chief justice Raymond Zondo recommended that Essa be criminally investigated and possibly prosecuted in connection with “various contracts concluded between 2012 and 2016 that led to the payment of at least R7.34bn in kickbacks” to companies controlled either by him or the Gupta family.

Essa is alleged to have facilitated huge contracts with Transnet and Eskom for Regiments and later Trillian in which he owned a majority stake, in exchange for millions of rand in alleged kickbacks. He is also alleged to have played a role in the purchase of Optimum Coal Mine for the Gupta family.

He also allegedly tried to buy a bank — Habib Overseas Bank — when SA’s major banks refused to do business with the Guptas.

But in his affidavit, Essa, who didn’t reveal his whereabouts, saying only that he “resided” in Dubai, said those who testified against him were saving their own skins.

“[The commission] had based its findings upon the untested and hearsay evidence of witnesses who, even [Zondo] admitted, were more interested in exculpating and exonerating themselves as opposed to advancing the truth. I had been precluded from cross-examining these patently uncredible witnesses.”

In his affidavit, he slams the evidence leaders whom he claims “coached and coaxed certain witnesses” and “sought to advance a narrative that particular individuals (including me) were the architects of state capture and tailored the evidence that was led accordingly”.

He also claims the evidence leaders “compiled the reports and, in doing so, advanced their predetermined narrative”.

“I was always co-operative in my interactions with [the commission and judge Zondo] answering any question put to me,” he said.

Two Gupta brothers, Atul and Rajesh, were arrested in Dubai on an Interpol Red Notice which the SA authorities applied for. SA has applied to the Dubai authorities for the brothers' extradition. 

Essa has not been criminally charged by the National Prosecuting Authority in connection with any state capture offence.

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