Deputy Chief Justice Raymond Zondo has expressed concerns over the Gupta brothers' application to cross-examine witnesses from abroad.
Advocate Mike Hellens, SC, for Ajay Gupta told the commission on Thursday that his client was willing to testify and wanted to cross-examine witnesses from a location outside South Africa.
Hellens claimed that the Gupta brothers were worried about possibly being arrested if they returned to South Africa, labeling the Hawks and the National Prosecuting Authority "recklessly incompetent and a national embarrassment".
However, Zondo, who chairs the commission, accused the Guptas of wanting to enjoy the benefits of South Africa's legal system without subjecting themselves to its processes.
"How do you tell a body such as this one that you want to participate, but participate on your own terms?" Zondo asked.
"They are the ones who on their own version have taken themselves outside of this process. If they don't get granted leave to cross-examine it is because of their own decisions to leave the country and decision to say 'we are not coming back because we have no faith in the legal system of South Africa'."
Earlier on Thursday, advocate Vincent Maleka argued that the "type of undertaking made by the Gupta brothers is not worth the promise that it is made of [and] not worth the paper that it is on because they may wake up one day and decide they are not going to subject themselves to this communication".
Limited powers outside SA
Maleka said it was possible that when being asked questions, they might opt to disengage and that Zondo would have no powers to compel them to answer questions.
Maleka said Zondo's powers were limited because he had no jurisdiction outside of the country.
He also raised concerns over the Guptas' proposal to testify abroad and that it was convenient for the brothers but not for the commission.
"The road to hell is paved with good intentions and we don't want to risk that road," Maleka argued. He added that the Guptas wanted to make use of the commission's processes to "proclaim and advance their innocence".
Meanwhile, Hellens insisted that his client had the right to cross-examine witnesses, adding that the power of cross-examination lay in the element of surprise.
He also told Zondo that if the Guptas did not testify, then the commission would have a "limping conclusion".
"Mr Helens, you say for cross-examination to be effective there must some element of ambush?" Zondo asked.
Hellens replied: "You use the word 'ambush', but it is not really, it is not really an ambush."
Hellens said the commission's job was to find the truth and decide if there was indeed state capture.