WHY NPA WON’T ACT
Prosecutors cite illegal possession of the emails and possible tampering, despite implicated ANC insiders having attested to their authenticity
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”.