Resistance is futile
18 October 2017 11:19 (South Africa)
Opinionista Pierre de Vos

Gupta emails: Why more investigation is not needed before action can be taken

  • Pierre de Vos
    Pierre de vos
    Pierre de Vos

    Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.

The drip-drip revelations about the content of emails sent by and to various Guptas and their associates, provide further, undeniable, proof of the extent to which the Guptas have used their association with President Jacob Zuma and especially his son, Duduzane, to corrupt the state for their own private financial benefit (and the benefit of the Zuma family). But despite the revelations, no one has suffered any consequences for being implicated in helping the Guptas to capture the state. The failure of those in positions of authority to act can be read as tacit or active support for the corrupt self-enrichment schemes of the Gupta family.

Apart from that one fellow who begged the Guptas for money, I know of no one implicated in the Gupta emails who has argued with any conviction that the emails are not real. While some have half-heartedly suggested that there was a need to determine whether the emails are real, they have not been brave enough to deny their authenticity outright, perhaps because such an outright denial would have destroyed any credibility they might still have had.

Any argument that the emails have all been faked would in any case not be believable (even if it was made by a person who had not taken a meat cleaver to his own credibility by begging the Guptas for money and then lying about it).

There are several reasons why the emails are almost certainly real. First, the sheer scale of the email leak (there are apparently between 100,000 and 200,000 of them) would make it close to impossible to have faked them all. Second, several people implicated in the Gupta emails have directly or implicitly admitted their authenticity. 

Communications Minister Ayanda Dlodlo, for example, confirmed the veracity of a Gupta email regarding the payment of her bill at the Oberoi Hotel in Dubai. Mzwanele “Jimmy” Manyi also confirmed the veracity of the emails, which showed that he had approached the Gupta family seeking positions for himself and attorney Xoliswa Mpongoshe at state-owned-entities. Manyi said there was nothing wrong with what he had done, and that if given the chance to would do it again. (The fact that Manyi thinks there is nothing wrong with the Guptas deciding who serves on the boards of state owned enterprises, says much about his complete lack of an ethical compass.)

Third, the Hawks announced that they were investigating how the Gupta emails were leaked. Confusingly, they also said they were investigating the authenticity of the emails. This makes no sense. How can you investigate the leaking of emails which you are not sure ever existed? But as we know from the disastrous manner in which the Hawks handled the so called criminal investigation against Pravin Gordhan, the Hawks are not very competent, so they might not have realised that they acknowledged the veracity of the emails by announcing they were investigating who leaked them.

Fourth, the Guptas and others at the heart of the email scandal have not explicitly denied the existence or veracity of the emails. Gupta lawyer Gert van der Merwe in fact said that the family will lay criminal charges if it is proved that email servers at one of its companies were hacked. He did hedge his bets by saying that the emails would also be looked at to see if they, or parts of them, had been “faked”. I would put some good money on it that this “investigation” will be just as productive as the “investigation” announced by Dr Nkosazana Dlamini-Zuma into the alleged “hacking” of her Twitter account. We are still waiting for the outcome of that alleged “investigation”.

If somebody released thousands of my emails I would not first say that my account was hacked and demand an investigation of the leaks, then contradict myself and say that I am going to check whether the emails might not have been faked. I am not that stupid. If the emails were real I would probably do what the Guptas are doing: remain silent. If they were faked, I would immediately know they were faked.

Who needs an investigation to determine whether they sent emails exposing them to possible criminal conviction? Come on, if you are involved in criminal activity you will remember whether you sent emails incriminating yourself or not. You would only “investigate” whether the emails are real, when you already know they are, but wish to confuse the public and wish to buy some time to destroy corroborating evidence.

Any person who is implicated in criminal activity by fake emails, would immediately say that the emails are fake. If I failed immediately and forcefully to deny their authenticity, you would know that I am admitting that the emails are real.

So I have no doubt that the emails are real. To question their authenticity requires mental contortions or dishonesty of a kind that I am not capable of. This makes the matter rather serious. The emails reveal serious wrongdoing on the part of cabinet ministers, board members and managers at state-owned enterprises, and by the Guptas and their associates.

Whether they provide sufficient evidence that could be used to secure criminal convictions for corruption, racketeering and money laundering, is not possible to say. The Hawks would need to investigate the alleged criminal offences properly and fearlessly to see whether criminal convictions could be secured. They have a legal duty to do so, but whether they will is an open question.

The fact that the Hawks have not (yet?) investigated the wrongdoing revealed by the emails and that the courts have not (yet?) admitted the emails into evidence or convicted somebody for a criminal offence based on the emails does not mean they do not exist or that they are not proof of the facts revealed in them.

It is odd to have to belabour this point, but a considerable number of people who support state capture, benefit from it, or who (for political reasons) wish to defend those implicated in it, have advanced the argument that the emails contain no evidence of wrongdoing as these emails have not yet been “verified” by a court of law.

Others (including the ANC in a statement) have argued that the emails in which the wrongdoers implicate themselves only contain “allegations” of wrongdoing. Yet others (like the Gupta lawyer) have said the emails are based on “innuendo” and must be further investigated.

While it is true that further investigation is necessary to establish whether criminal charges can be brought against those implicated, the emails themselves already provide evidence of wrongdoing. These are not “allegations”,  they provide proof of wrongdoing.

Facts remain facts, whether they have been confirmed in a court of law or not. If your father is shot and killed in your dining room, his dead body on the floor provides evidence (pretty incontrovertible evidence at that), of the fact that your father is dead. The fact that a court has not yet confirmed that he is dead is, from a factual perspective, completely irrelevant. He remains dead, whether a court pronounces on his death or not. CCTV footage showing how your father’s business partner had shot and killed him is evidence that your father was killed by his business partner.

The emails are like that dead body on the floor and the CCTV footage showing who killed your father. It would be beyond bizarre to insist that a commission of enquiry was required to establish whether your father is dead and whether he was shot by his business partner. Here you are sitting with your father’s lifeless body in your hands, and some crazy person, trying to protect the business partner, is insisting that there must first be a thorough enquiry before we can say for certain that your father is in fact dead.

Sounds Kafkaesque, doesn’t it?

The emails provide proof that several ministers (Faith Muthambi, Mosebenzi Zwane, Lynne Brown, Malusi Gigaba) have been captured by the Guptas. If President Jacob Zuma opposed the wrongdoing by his ministers to advance the private financial interests of the Guptas he would immediately dismiss these ministers. The fact that he has not done so, provide further evidence that he supports the capturing of the state by the Guptas and protects those involved in it. (This is no surprise as his own son is at the centre of state capture.)

The emails also provide proof that several board members of state owned entities have been leaking confidential documents to the Guptas and their associates. This means Minister Lynne Brown is entitled to suspend or even remove these implicated people from the boards they serve on. The fact that she has not done so, provide further evidence that she supports the capturing of the state by the Guptas and is willing to protect those involved in it.

The emails also provide proof that several high ranking officials in state owned enterprises have been doing the bidding of the Guptas, helping them to extract billions of Rand from various state owned enterprises (and hence from ordinary citizens). This means the various boards of state owned enterprises are entitled to suspend or even remove these implicated people from the positions they serve in. The fact that they have not done so, provide further evidence that the boards of state owned enterprises support the capturing of the state by the Guptas and are willing to protect those involved in it.

This does not mean that the evidence contained in the emails should not be further investigated to determine who should be prosecuted for corruption, money laundering and racketeering. It should. It means that such investigations are not required before action can be taken in the civil and political sphere against those implicated in wrongdoing. Those who hold otherwise are aiding and abetting the Guptas and their state capture scheme. DM

  • Pierre de Vos
    Pierre de vos
    Pierre de Vos

    Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.

Get overnight news and latest Daily Maverick articles






Do Not Miss