The Gupta leaks and the law
The leaked e-mails between government servants and Gupta lieutenants suggest prima facie evidence of corruption, but will the public interest trump protection of information law if the matter goes to court?
The Hawks, the police’s directorate for priority crimes investigation, have launched an inquiry into the leaked Gupta e-mails. But acting head Yolisa Matakata will not say what exactly is being probed.
The hundreds of thousands of leaked e-mails between members of the Gupta family and their associates contain more than prima facie evidence of criminal wrongdoing that can be prosecutable, say cyber crimes and legal experts.
One of the problems could be that anyone who hacked the Guptas’ system may face prosecution
The e-mails appear to show key members of government, a substantial number of ministers and senior state employees illegally sharing confidential state information with members and associates of the Gupta family. Crucially, they also appear to show the involvement of the security establishment in illegally spying on government for the Guptas. Charges could include treason and corruption.
The ANC has called on government to establish the veracity of the e-mails, saying reports on the matter contain alarming claims about the nature of the relationship between government and private interests. But that’s how far the party has gone on the matter. Key members of its government have said nothing about the matter.
This past weekend, the ANC’s subcommittee on peace and security declined to comment on the leaked e-mails. State security minister David Mahlobo and defence minister Nosiviwe Mapisa-Nqakula are members of this committee. Mapisa-Nqakula would only say that the committee was concerned about cyber security: "I think when we deal with that issue it should be dealt with in the context of issues of cyber security."
The Sunday Times reported that former communications minister Faith Muthambi, now the minister in charge of the public service, directly informed Tony Gupta, as well as members of his staff, about government policy. Some of the matters contained in Muthambi’s e-mails to the Guptas reached the family before they were discussed by her cabinet colleagues.
The e-mails appear to show that Muthambi, a close ally of President Jacob Zuma, alerted the Guptas to certain policy changes related to her portfolio even before the president had officially approved them. As communications minister, Muthambi had political oversight over the shambolic SABC and the controversial multibillion-rand policy on digital terrestrial migration of television broadcasting, among others.
They also draw a link between the Guptas and co-operative governance & traditional affairs minister David Des van Rooyen — specifically, that the Guptas paid for a private trip he made to Dubai shortly after his appointment to cabinet in December 2015, something he has denied.
The e-mails also reveal that confidential State Security Agency correspondence was sent to the Guptas and that board members of some state-owned entities illegally shared information with the family.
The police have the responsibility and constitutional mandate to investigate any alleged breach of the law, and do not require a complaint to be lodged before taking action, says Lawson Naidoo, executive secretary of the Council for the Advancement of the SA Constitution, a civil society organisation.
"There is a lot of it [breaches of the law], which constitutes, or is prima facie evidence of, criminal offence," says Naidoo. "The position really is that the law enforcement agencies should be investigating and making sure they follow up on the information which is now available and prepare a docket for prosecution."
The fact that confidential information was leaked by a minister or by someone in a position of trust and seniority [breached] the code of ethics of the institution and should be investigated, says Ulrich Roux, a director of BDK Attorneys and a specialist in defence and commercial litigation.
If a cabinet minister was induced to act in a certain way and did so in exchange for money or other favours, like stays in lavish hotels, he or she could be charged with corruption.
"It comes down to the Hawks or police being able to prove these ministers received benefits, be it in the form of money or any other benefits, from a private family, the Guptas of course, and that that induced them into acting in a certain way, then you could very well charge them with the crime of corruption," says Roux.
The same goes for Zuma’s son Duduzane, says Roux. If it could be proved that he received substantial financial help, including for purchasing an R18m apartment in Dubai’s iconic Burj Khalifa skyscraper two years ago, as the e-mails appear to prove, in exchange for setting up certain meetings or inducing certain behaviour by his father — then there was a clear incidence of corruption.
Roux says that in terms of SA law e-mails are regarded as prima facie evidence. "[It] is regarded as prima facie proof of a crime having been committed, if it is set out in an e-mail. But the origination of that e-mail would have to be proven, as would other factors, [such as] that it was not tampered with or edited, that it was sent by the person who sent it, that it was received by the person who received it."
All of that would have to come out in evidence led in court, if the matter goes to trial, says Roux. "But on the face of it, it does serve as sufficient evidence to lay a charge and certainly to charge someone with the allegations as contained in the e-mails."
However, the main problem over the leaked e-mails is squaring the protection of whistleblowers’ legislation with the Protection of Personal Information Act, says Danny Myburgh of Cyanre Computer Forensic Labs, who helped write SA’s new cyber crimes bill.
"If you are the Guptas and your computer system has been hacked, the person who did the hacking would be committing a crime. You would, however, have to determine how the information was accessed," he says.
"Under current cyber legislation, this kind of access would be illegal. Whether it is morally correct to leak such information is a different question, but to access the information, regardless of the intention, is illegal."
Any prosecution that may follow would not be for leaking the information but for illegally accessing it, says Myburgh.
He says the new bill makes provision for aggravation of sentence depending on what systems and computers had been breached.
"If it is a restricted system such as defence, police or Eskom then the sentencing would be harsher; but with computers such as those of the Guptas, which are not officially restricted, it would be less [severe]," he adds.
Cyber crimes expert Jacques van Heerden says the questions that need to be asked are: what the e-mails were used for; how they were obtained originally; and from which computers or servers.
"The cat is out of the bag. Now one needs to look at their legitimacy," says Van Heerden. "With so many e-mails leaked it is going to be nearly, if not totally, impossible to determine whether they are not fake or tampered with.
"The media houses publishing this data can be sued, but it will be debatable as to whether those attempting to sue will be successful as they will have to prove the e-mails are fake, which will not be easy."
The Guptas claim the e-mails have been tampered with, but according to Van Heerden, if the original server logs are destroyed it would be impossible to say they were tampered with.
What would carry more weight in court would be the provisions of the Protection of Information Act, the public’s right to know, and what was in the public interest.