The chairperson of the commission of inquiry into state capture, Deputy Chief Justice Raymond Zondo, has ruled that the Gupta emails that were leaked to the media and subsequently blew the lid on state capture will be admissible as evidence.
Zondo ruled on Friday that data – emails – on the original hard drive and the data that was forensically imaged on to two other hard drives may be used as evidence at the commission.
The commission’s chair, however, ruled that nobody outside of the commission shall have access to either of the hard drives until it is presented by the commission’s legal team at a public hearing of the commission.
Zondo added that should any specific person or party wish to have access to the hard drives at any time prior to the legal team’s presentation at the commission’s public hearing, such person or party must first obtain the leave of the commission.
On Thursday and Friday, the commission heard the application to admit the so-called Gupta emails as evidence.
The evidence is in the form of data on hard drives, said the commission’s head of legal Paul Pretorius.
Pretorius said: “The application is made on behalf of Terence Nombembe, who is the commission’s lead investigator. On 28 of May 2017, The Sunday Times [newspaper] published what became known as the Guptaleaks, or GuptaEmails. In due course, journalists employed by amaBhungane [M & G newspaper], among others, published excerpts and analysis of this data over a period of time. All this data was originally contained in a computer hard drive, the commission now has the hard drive in safe keeping… that is what will be referred to as the original hard drive.”
The hard drive belonged to Gupta-owned Sahara Computers, he said.
An expert in Europe made ”a forensic image” of the hard drive. There are two further hard drives which are replicas of the original hard drive, Pretorius said. He added that the original hard drive has been damaged.
”The risk is that if a non-expert handles this hard drive, there will be a risk of permanent irretrievable damage. The original hard drive can only be dealt with by experts. The three hard drives contain information relevant to this commission.”
Pretorius said it was up to Sahara Computers whether they wanted to challenge the use of the hard drives as evidence, but that the commission was bound to probe all evidence and was not restricted in its duties.
“Sahara Computers might face a dilemma, as the emails are already in the public through the media. If it contests the use of evidence on grounds of right to confidentiality, it must logically admit the authenticity of the evidence [on the hard drives]. It will be seen as to what approach Sahara Computers chooses to take in due course.”
Pretorius told the inquiry that the hard drive landed in the hands of two whistleblowers who wanted to remain anonymous, and would testify, preferably in July next year. With pseudonyms “Stan” and “John”, the two came across the data and contacted lawyer Brian Currin to handle the information as they did not have the expertise and know-how on how to handle such explosive information contained in the emails on the Gupta family and their associates.