'Gupta Leaks emails should be part of evidence'

The Zondo Commission’s legal team has applied for the admission into evidence of three hard drives containing the so-called “GuptaLeaks” emails – which they believe are “relevant to the work of the commission”.

Inquiry lawyer Paul Pretorius says the application to admit the hard drives containing the leaks‚ which is supported with an affidavit by inquiry lead investigator Terence Nombembe‚ was brought without giving any notice to the alleged owners of the hard drives: Sahara Computers.

Any interest that Sahara Computers may have in preserving the confidentiality of the emails or challenging their admission into evidence could be argued at a later date‚ he said.

If Sahara persisted in claiming that the emails were fake it would have no right to seek to preserve their confidentiality‚ he said. If they want to keep the emails confidential‚ he further argued‚ they would have to admit the authenticity thereof. “We will have to see what they do‚” he concluded.

'Gupta leaks' is the term used for information decoded from thousands of emails between the Guptas‚ their associates and certain Cabinet ministers that reveal how South Africa's parastatals and politicians were captured.

It concerns between 100‚000 and 200‚000 emails which reveal how the family did business and their engagements with the state and politicians.

President Jacob Zuma’s son Duduzane was allegedly a key player in facilitating deals between the Guptas‚ the former president and other politicians and was one of the main beneficiaries‚ according to the leaks.

Pretorius said whistleblowers linked to the release of the GuptaLeaks were currently unwilling to testify before the commission‚ but have indicated that they may be willing to do so in July next year. The reason for that specific time frame is currently unknown.

Human rights lawyer Brian Currin is expected to be called to testify in support of the application for the admission of the hard drives into evidence.

Pretorius has argued that the commission is “obliged to examine all available evidence” and argued that the data contained on the hard drives “is authentic‚ but reliable as well”.

He has argued that the application to admit the drives was aimed at “lending further weight” to the evidence led at the inquiry and serving as “assistance to the preservation of evidence in any future criminal or civil proceedings”.

Currin was approached by a friend of 'Stan'‚ the original source of the hard drives containing the GuptaLeaks emails. Currin later met Stan‚ who decided to release the emails despite fearing for his safety‚ Pretorius said.

“Nombembe is instructed … by experts among his investigators that they appear to be of the view that the data is authentic. In other words‚ that that data is what it appears to be on the face of it‚ created by actual persons whose names and identities appear on the emails‚ in real time‚ rather than being manufactured later as fakes by someone wishing to make those emails look genuine when in fact they were not‚” Pretorius said.

He has stressed that the information contained in the GuptaLeaks stories published in the media were a “small percentage” of the emails now in the inquiry’s possession.

He added that there were certain “indicators of authenticity” that could establish that the emails were not fake‚ and could not be fake. These included the “hidden (technical) data” contained in emails‚ as well as their existence on other servers.

“The number of email communications comprised of transactions in the hundreds of thousands. That on its own is an indication that the probability of someone faking the totality is extremely low‚” Pretorius argued.

“Generally‚ someone can accept that it is highly improbable that someone would sit down and fake hundreds of thousands of emails.”

He added that it would be “impossible” for someone faking emails to ensure that they existed on other servers.