05/06/2017 16:00 SAST | Updated 05/06/2017 17:47 SAST

Analysis: How To Avoid A Whitewash In The Gupta Leaks Investigations

"I find it strange that no action has been taken as yet on available evidence."


President Jacob Zuma and other state officials allegedly implicated in the massive leak of emails from within the Gupta network may have reason to feel nervous.

If what's being implied in the emails turns out to be true, they could face payback from the police, the judiciary and/or parliament. But the path to actually holding anyone accountable will be a rocky one; as evidenced by the Arms Deal or Nkandla investigations.

The ANC is pushing for the acceleration of a judicial commission of inquiry into state capture while the Democratic Alliance has approached Parliament to schedule an ad-hoc committee to probe the allegations of state capture by the Guptas.

The DA has also laid an array of criminal charges against Zuma, members of the Gupta family, several cabinet ministers and senior executives of state owned entities.

There is ample ammunition, but how will the trigger eventually be pulled?

Read: Zuma's Judicial Inquiry Into State Capture Could Be A Whitewash Like The Arms Deal

Constitutional law expert Pierre de Vos said the answer depends on many variables. If a judicial commission of inquiry is given appropriate powers and the correct person is appointed to oversee the process, then it could be very effective in dealing with allegations of state capture. But, it will take time.

De Vos said a parliamentary inquiry is more of a "short and dirty" process.

"This will all depend on the political will of the [ANC] majority. A parliamentary process like this is not as well placed to delve deeply into the factual element of an inquiry... Both [judicial and parliamentary] inquiries can run together," de Vos said.

"There is so much evidence already. I don't know how much of this will result in individuals being criminally charged, but there is ample evidence for labour law and political actions to be implemented. I find it strange that no action has been taken as yet on available evidence."

De Vos said the findings of both types of inquiries, however, are not as legally binding as a decision by a court of law but it does put political pressure on individuals who are implicated.

Will it be another whitewash?
Although the ANC called for the a judicial commission of inquiry into allegations of state capture to be "accelerated", they remain steadfast on their position that Zuma should appoint a judge to preside over it. This raises fears it will be another whitewash.

This is against the recommendations of former Public Protector Thuli Madonsela's "State of Capture" report, which said the inquiry should be presided over by a judge selected by Chief Justice Mogoeng Mogoeng.

The last time Zuma had a hand in appointing a presiding judge over an important judicial commission of enquiry was for the Arms Deal. The final report was described by political commentators as a whitewash that acquitted government of any wrongdoing. It was mocked widely for the incorrect handling of witnesses and the exclusion of important documentation.

On the other hand, the recent ad-hoc committee instated to probe the SABC uncovered fraud and corruption, later recommending that the broadcaster's board be formally dissolved and an interim board be appointed.

The committee found former SABC executive Hlaudi Motsoeneng, who has since been suspended, and former communications minister Faith Muthambi were at the root of the broadcaster's issues.

'It could take years'
Law expert Marinus Wiechers was concerned that after South Africans wait years for a judicial commission of inquiry to reach its conclusion, its results may be similar to that of the Seriti Commission into the Arms Deal.

He is doubtful the DA will be successful in getting a parliamentary ad-hoc committee into state capture established.

"If it is established, it will give the opposition immediate access to the debate. It will be more effective in the shorter run. But Zuma has influence in the judicial service commission. He has support there. It would be a strong move by ANC members to allow a parliamentary inquiry, but I am doubtful, because they may hide behind the judicial commission of inquiry too," Wiechers said.