WHY NPA WON’T ACT

Pros­e­cu­tors cite il­le­gal possession of the emails and pos­si­ble tam­per­ing, de­spite im­pli­cated ANC in­sid­ers hav­ing at­tested to their au­then­tic­ity

CityPress - - Front Page - ABRAM MASHEGO abram.mashego@city­press.co.za

De­spite mount­ing calls for ac­tion on the #GuptaLeaks, pros­e­cu­tors guid­ing the in­ves­ti­ga­tion into state cap­ture be­lieve the emails do not con­sti­tute ev­i­dence against Pres­i­dent Ja­cob Zuma’s friends, the Gup­tas or any min­is­ters and in­di­vid­u­als im­pli­cated in the mas­sive tranche of in­for­ma­tion.

City Press has learnt that three teams of pros­e­cu­tors from the Na­tional Pros­e­cut­ing Author­ity’s (NPA’s) Spe­cialised Com­mer­cial Crime Unit (SCCU) have been tasked with pro­vid­ing pros­e­cu­to­rial guid­ance to the po­lice’s cy­ber­crimes unit and the Hawks’ Anti-Cor­rup­tion Task Team (ACTT).

But two se­nior pros­e­cu­tors, one of whom is play­ing a lead­ing role in the probe, and a se­nior Hawks of­fi­cial, say they do not think the emails will be ad­mit­ted into ev­i­dence be­cause pros­e­cu­tors and in­ves­ti­ga­tors be­lieve they were stolen.

“They are like the fruits of a poi­soned tree,” said the se­nior pros­e­cu­tor, who de­nied any di­rect po­lit­i­cal in­ter­fer­ence in their in­ves­ti­ga­tion.

“In or­der for us to use them, we need to check their au­then­tic­ity and how they were ob­tained. As they stand now, we can­not just take them as ev­i­dence and make a de­ci­sion to ei­ther pros­e­cute or not pros­e­cute. One of the con­cerns is that they may have been tam­pered with.”

NPA and Hawks sources told City Press that last week, Na­tional Direc­tor of Public Pros­e­cu­tions (NDPP) Shaun Abra­hams sug­gested at a Hawks man­age­ment meet­ing that the three teams be dis­banded and an “in­ves­tiga­tive di­rec­torate” be es­tab­lished to in­ves­ti­gate the #GuptaLeaks.

But the Hawks man­age­ment, in­clud­ing new act­ing head Lieu­tenant Gen­eral Yolisa Matakata, al­legedly re­sponded that there was no bud­get for any ad­di­tional unit, and that the in­ves­ti­ga­tion would be set back fur­ther if this were to hap­pen. A source with knowl­edge of the meet­ing said Abra­hams was re­minded that his job was to pros­e­cute, not in­ves­ti­gate, and that the Hawks “didn’t want an­other Scor­pi­ons” – a ref­er­ence to the now de­funct elite unit which in­ves­ti­gated cor­rup­tion. The sources also said Abra­hams briefed se­cu­rity clus­ter min­is­ters on the in­ves­ti­ga­tion’s progress. But NPA spokesper­son Luvuyo Mfaku de­nied this, say­ing Abra­hams was overseas last week. “Abra­hams has had no for­mal en­gage­ments with the head of the Hawks on any matter, ei­ther im­me­di­ately prior to his de­par­ture or af­ter his re­turn. He has not at­tempted to dis­band any pros­e­cut­ing team,” he said, adding that Abra­hams could do so if he wished to. “The pre­rog­a­tive to re­quest [Abra­hams] to es­tab­lish an in­ves­tiga­tive di­rec­torate ... lies with the head of the Hawks. The NDPP has not re­ceived any for­mal re­quest.” Hawks spokesper­son Hang­wani Mu­laudzi said Matakata would nei­ther con­firm nor deny the meet­ing, re­fer­ring City Press to the NPA.

The at­ti­tude of se­nior pros­e­cu­tors, led by act­ing SCCU head Ad­vo­cate Malini Goven­der, to the #GuptaLeaks comes in spite of the fact that a num­ber of se­nior ANC in­sid­ers im­pli­cated in the leaked emails have con­firmed their au­then­tic­ity. Among them are Com­mu­ni­ca­tions Min­is­ter Ayanda Dlodlo, who ad­mit­ted that she took a trip to Dubai, cour­tesy of the Gup­tas; North West Premier Supra Mahumapelo, who was cited as a visi­tor to their home in Sax­on­wold; and Zuma’s ad­viser Lakela Kaunda, who ad­mit­ted that she was a nonex­ec­u­tive direc­tor of a Gupta-owned com­pany in 2008, but re­signed af­ter six months. This news will come as a blow to many South Africans, who have been in­un­dated with scan­dals, in­clud­ing how the Gup­tas ma­nip­u­lated boards of state-owned com­pa­nies and re­ceived hun­dreds of mil­lions of rands in kick­backs.

“For now, peo­ple should just chill,” said one of the se­nior pros­e­cu­tors guid­ing the in­ves­ti­ga­tion. “There will be no ac­tion based on what I have seen. If any ac­tion will be taken against those im­pli­cated in this matter, it will only hap­pen af­ter two years at the ear­li­est.

“One of the chal­lenges we have is that the ev­i­dence re­mains with the sus­pects them­selves.”

In an in­ter­view with City Press this week, former pros­e­cut­ing head Mx­olisi Nx­as­ana dis­missed the pros­e­cu­tion teams’ as­ser­tions that the emails did not con­sti­tute di­rect ev­i­dence of wrong­do­ing, say­ing they were far more than mere “al­le­ga­tions”.

“There is more than just mount­ing ev­i­dence in the emails. You can­not say the emails were ob­tained il­le­gally and sim­ply ig­nore the ev­i­dence they con­tain. There is noth­ing stop­ping them from ap­proach­ing a judge and mak­ing a re­quest [to subpoena the emails] in terms of sec­tion 205 [of the Criminal Pro­ce­dure Act]. Then they would have ob­tained the ev­i­dence legally.”

James Grant, as­so­ciate law pro­fes­sor at the Univer­sity of the Wit­wa­ter­srand, agreed, say­ing that the fact that ev­i­dence was un­law­fully ob­tained did not dis­qual­ify it from be­ing used in court. “Here you have an in­va­sion of pri­vacy,” he said. “Is it a major in­fringe­ment of the per­son’s right? Let us con­sider that against the public in­ter­est in the case. Weigh those two, and the public in­ter­est may over­ride the in­fringe­ment of the per­sonal right to pri­vacy here. There is no au­to­matic ex­clu­sion by the law.”

At a meet­ing held three weeks ago be­tween pros­e­cu­tors and in­ves­ti­ga­tors at the NPA’s head­quar­ters in Sil­ver­ton in Pre­to­ria, it was de­cided that the po­lice de­tec­tives had to ob­tain their own copies of the emails, “fol­low­ing proper pro­ce­dures, such as ob­tain­ing search war­rants and copy­ing the servers of the im­pli­cated in­di­vid­u­als”, the se­nior pros­e­cu­tor said.

“What we also dis­cussed, and what we found to be a stum­bling block, was that the ev­i­dence which we need to de­cide the mer­its of the case re­mains with the sus­pects. We will have an up­hill bat­tle to ob­tain the in­for­ma­tion.”

But Grant said the fact that pros­e­cu­tors be­lieved ev­i­dence might be de­stroyed meant that they had “rested on their lau­rels too long” and “should have re­moved the ev­i­dence a long time ago”.

The se­nior pros­e­cu­tor said an­other prob­lem raised was that some of the emails showed links to in­ter­na­tional com­pa­nies whose co­op­er­a­tion might be dif­fi­cult to se­cure.

“Get­ting co­op­er­a­tion from an­other country’s law en­force­ment agency can take at least two years be­cause of the te­dious process,” the pros­e­cu­tor said.

A se­nior Hawks of­fi­cial said the unit’s in­ves­ti­ga­tors were told to study the emails – which were given to them by the DA and civil so­ci­ety or­gan­i­sa­tion Outa – and con­sider them as a “tipoff” to guide them in a broader in­ves­ti­ga­tion.

Mfaku said pros­e­cu­tors had not made any pro­nounce­ments on the #GuptaLeaks or any other in­ves­ti­ga­tions aris­ing from former public pro­tec­tor Thuli Madon­sela’s State of Cap­ture re­port.

“It is highly in­ap­pro­pri­ate for the NPA to com­ment on is­sues re­lated to in­ves­tiga­tive tech­niques or method­olo­gies which will be em­ployed in re­spect of any matter un­der in­ves­ti­ga­tion by the po­lice,” he said.

Hawks spokesper­son Hang­wani Mu­laudzi said that, while they un­der­stood the public’s frus­tra­tion, “at the same time, we need to en­sure that an in­ves­ti­ga­tion is prop­erly con­ducted be­fore ar­rests and a case can be brought to court”.

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