LETTER: Glynnis Breytenbach to Shaun Abrahams: how to get the GuptaLeaks probe going
Sir — It is with a degree of concern that I noted the front-page reports regarding the #GuptaLeaks investigation.
Given that no comprehensive denial or retraction has been communicated, it seems pertinent to bring the following points to the attention of the director of public prosecutions, Shaun Abrahams.
It is abundantly clear that "three teams of prosecutors" tasked with providing guidance to the Cybercrime Unit and the Hawks have neither the wherewithal nor the will to do this efficiently or effectively. The following suggestions are therefore made in the interests of a just, quick and efficient investigation.
There are still prosecutors at Abrahams’s disposal with the experience and ability to lead this investigation and to prosecute successfully upon completion. He knows who they are, but has failed to appoint them. If he had appointed them they would by now have made significant progress. They would have advised him that:
• Information obtained from the #GuptaLeaks can be used as evidence and much of it has already been confirmed by persons implicated;
• The authenticity of the #GuptaLeaks has been established to a large degree, but any cyber forensic expert worth their salt could establish authenticity from the source;
• search and seizure warrants should (already) have been authorised and effected, allowing the experts to begin their work;
• S205 subpoenas should (already) have been served, and bank statements and other documentation been obtained and analysed;
• Cipro searches should (already) have been done and the necessary company and other documents been obtained and analysed;
• This process would have authenticated the vast body of #GuptaLeaks and been admissible as evidence against the various perpetrators;
• The Asset Forfeiture Unit should (already) have been in court obtaining freezing orders against the assets of individuals and companies implicated;
• Evidence obtained in the fashion of the #GuptaLeaks remains admissible in South African law, and that the court has a discretion and will consider the overwhelming public interest in the matter, and also has a discretion regarding the weight to be attached to the evidence at the end of the trial;
• They could be ready for trial, at least with the low-hanging fruit, by year-end if sufficient energy, will and resources were to be made available;
• If the SAPS came to the party and made available the limited number of detectives still available to do this investigation competently, then this is entirely achievable: bearing in mind that this is the single most important investigation in the past 15 years, there can be no doubt that this would be the case;
• There is significant goodwill from international agencies that should (already) have been accessed in this investigation. Again, bearing in mind that some of the offences were clearly committed in international jurisdictions, they would be only too willing to assist, in their own best interests; and, lastly:
• They would have advised you to read the following judgments (among others), which would be of great assistance in this matter: Harvey v Niland and others 2016 (2) SA 436 (ECG); S v Brown 2016 (1) SACR 206 (WCC); and Zurich v State  1 All SA 352 (SCA)
Had Abrahams appointed the few, but sufficient, competent prosecutors at his disposal, this is the advice they would have given him. They would have been able to provide regular and real progress reports and the citizens of SA, who are desperate for some good news, would have been satisfied that the National Prosecuting Authority can do the job it is meant to do.
He can and should still appoint those prosecutors, in the interests of the NPA, in the interests of justice and of the citizens of SA. The team assembled is clearly not up to the job.
Glynnis Breytenbach MPDA spokesperson for justice and constitutional development