Why NPA won’t probe Guptas over looting – claim

The failure of prosecutors guiding the investigation into state capture to make any progress in bringing the culprits to book – one ruled out any action on the matter for at least two years – has again raised the issue of whether they have been reined in by people in high places, notes Legalbrief. According to a City Press report, the prosecutors believe the leaked Gupta e-mails do not constitute evidence against President Jacob Zuma’s friends, the Guptas or any Ministers and individuals implicated in the massive tranche of information. The newspaper claims three teams of prosecutors from the 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. 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 e-mails will be admitted into evidence because prosecutors and investigators believe they were stolen. ‘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,’ they are quoted as saying. The attitude of senior prosecutors, led by acting SCCU head Advocate Malini Govender, comes in spite of the fact that a number of senior ANC insiders implicated in the leaked e-mails have confirmed their authenticity. ‘For now, people should just chill,’ said one of the prosecutors. ‘There will be no action based on what I have seen. If any action will be taken … it will only happen after two years at the earliest.

The views of the prosecutors, however, have been challenged by legal experts, according to City Press. Former prosecuting head Mxolisi Nxasana dismissed the prosecution teams’ assertions that the e-mails did not constitute direct evidence of wrongdoing, saying they were far more than mere ‘allegations’. ‘There is more than just mounting evidence in the e-mails. You cannot say the e-mails 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 e-mails) 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.’

Meanwhile, taking action against the Gupta family for allegedly looting the state has become a rallying cry for presidential hopefuls, writes Legalbrief. ANC heavyweights Mathews Phosa and Deputy President Cyril Ramaphosa, both drumming up support to be elected ANC leader at it conference in December, vowed to take action action the family implicated in looting at state-owned enterprises such as Eskom and Prasa.

Phosa warned looters of state resources that he would throw them in jail should he be elected president of the party in December and the country in 2019, notes a News24 report. Phosa tore apart President Jacob Zuma’s administration for not launching an investigation into the leaked Gupta e-mails. ‘The Guptas steal every day and nothing happens. When President Zuma is asked about the activities of the Guptas he says we must go and ask them. Who is the President? The people of this country must rebel against corruption. If I am elected President, I will throw them in jail,’ Phosa said, adding that Zuma was shameless, according to the report. Phosa’s chief national campaigner, Andile Lili, accused fellow presidential hopeful Nkosazana Dlamini-Zuma of having brought the Guptas into SA when she was Minister of Foreign Affairs (now International Relations). He said it would be pointless to elect Ramaphosa because ‘he would exchange the Guptas for the Ruperts’, the report states.

Ramaphosa sent out a message to the looters: ‘We want our money back.’ Another News24 report notes that, speaking during an OR Tambo Memorial Lecture at Nkone Maruping Primary school in Soweto on Saturday, Ramaphosa warned that the party would get its money back from a specific family. ‘We must go back and say to certain families, we want our money back.’ The report says the Deputy President's statement is a thinly veiled warning to the Gupta family which has been associated with multiple state-owned entities in the #GuptaLeaks. The Gupta brothers are reported to have received kickbacks from Eskom and Prasa and have been accused of influencing key Cabinet positions such as Treasury and Public Enterprises. The report notes that former African Union Commission chair Nkosazana Dlamini-Zuma also held a rally in Alexandra in Johannesburg on Saturday.