Deputy Chief Justice Raymond Zondo — the chair of the commission of inquiry into state capture — ordered on Friday that #GuptaLeaks electronic data be received as evidence before the commission.
The data, which is physically located on hard drives, consists of hundreds of thousands of emails that allegedly detail the extent of the Gupta family’s alleged role in state capture.
The commission is in possession of the original hard drive — named HDD-H — as well as two forensic images, a technical term for copies. The two copies are referred to as HDD-H1 and HDD-H2 respectively.
As part of his order, Zondo said that no person or party outside of the commission shall have access to the original data or its copies until the data is presented by the legal team at a public hearing of the commission.
Zondo further ordered that if anyone wishes to have access to the hard drives before the time specified (when the legal team presents its work on the data), “the leave of this commission will be required.”
The commission’s legal team started presenting its arguments for the admission of the hard drives on Thursday but Zondo remained unconvinced of the relevance of admitting the data at the end of the sitting.
At the start of Friday’s sitting, Zondo was still not sure about the application on the basis that investigations into the hard drives still needed to be done.
“For purposes of investigation, if there is still going to be investigation, it might be difficult to say whether something is relevant.”
Zondo mentioned how in a court of law, investigations of the evidence would be done first before the evidence is admitted but that since the commission is not a judicial arena, it is important that everyone keeps going back to “basic proposition that this is not a court of law”.
Zondo also raised the point that since the hard drives are in the possession of the commission, he doesn’t see why the legal team and investigators cannot do their work without the evidence being admitted first.
“It is not clear why, from the affidavit, that has to be so,” Zondo said.
However, the legal team managed to convince the commission’s chair by making amendments to their original application.
In the original motion, the team sought to have the hard drives admitted as evidence but on Friday, evidence leader Advocate Kate Hofmeyr conceded that the term ‘admitted’ has “loaded connotations” because it suggests a judicial process. Hofmeyr said upon reflection, the legal team deemed this term as “not helpful”.
Hofmeyr referred to section 6.2 of the commission’s rules which stipulates that the commission may receive evidence, instead of admit it.
“This means the commission can receive evidence relevant to its investigation”, Hofmeyr said.
Hofmeyr further argued that one of the major reasons the application was brought to the commission now rather than later was to inform the public “that this is what we have and will be working on”, so that anyone who wants to come forward can do so.
She also said the HDD- H data is relevant because many of the emails come from former Gupta-owned Sahara Computers which is “squarely in the terms of reference” of the commission.
The commission will resume on October 3 to hear evidence from Finance Minister Nhlanhla Nene.