At face value, the #GuptaLeaks emails indicate a whole raft of crimes which could land the most powerful people in the country behind bars for years.
But legal experts say that although the emails show that irregularities occurred, they are not sufficient on their own to haul the Gupta family and their friend President Jacob Zuma to court to prosecute them for various misdeeds.
Professor Koos Malan of the department of public law at the University of Pretoria, Lawson Naidoo of the Council for the Advancement of the South African Constitution (Casac), and senior prosecutor Wessie Wessels, say that the emails do provide sufficient grounds to lay charges with the police.
The contents of the emails may form the basis for the police and National Prosecuting Authority to investigate and prosecute possible violations under the Prevention of Organised Crime Act (POCA), the Public Finance Management Act (PFMA), the Prevention of Corrupt Activities Act, the Companies Act, the Tax Administration Act, and the Financial Intelligence Center Act (Fica).
This is in addition to common law crimes such as fraud.
But the biggest problem, according to all three experts, is who is going to investigate these charges and ensure that they come to trial.
It has been one shock revelation after another since City Press revealed the contents of a tranche of emails sent between the Guptas, their employees and senior government players.
Daily Maverick’s new investigations unit Scorpio and amaBhungane have also published news about a contract out of which the Guptas and their partners earned R5.3 billion from Transnet’s 1 064 locomotives tender.
This means that the Guptas earned R10 million for every R50 million locomotive built.
But to prove this in court, one must still be able to prove that money was transferred from one bank account to another, said Naidoo
Casac’s lawyers are busy studying the contents of the emails, he said.
How admissible the emails will be as evidence in court depends on various factors, including how the emails were obtained, said Malan.
According to him, it is apparently “fashionable” for high-ranking people to say that they will not receive a fair hearing if criminal evidence or information was leaked to the public. Naidoo, however, says he is not too worried about that and says the cases can be successfully investigated.
However, he said to prosecute a criminal case successfully, there needs to be more proof than just the emails.
“In my opinion, the emails alone are not enough,” said Naidoo. “They can form the basis to ask law enforcers to investigate the allegations, but what exactly are the Hawks going to do now?”
Shortly after the scandal broke, the DA laid charges of treason and corruption against Zuma, the Guptas and three ministers, and also laid corruption charges against Anoj Singh, Transnet’s former chief financial officer who currently holds the same position at Eskom.
The Guptas’ lawyer, Gert van der Merwe, said his clients had not had sight of the emails and therefore couldn’t comment on them.
“My clients were always prepared to fully cooperate with a properly constituted commission of inquiry,” he said.