SA’s bid to bring home Atul and Rajesh Gupta has received a boost with the news that extradition law expert Anton Katz SC will be leading the charge.
Katz and two other advocates, Kessler Perumalsamy and Eshed Cohen, will be part of the team from the National Prosecuting Authority (NPA) and the Department of Justice that will kick off extradition processes against the brothers after their arrest in Dubai a week ago.
The Sunday Times understands that Katz offered his expertise to the NPA in April. This followed a plea by justice minister Ronald Lamola in March, at the annual meeting of the Law Society, for South African lawyers to offer free legal services in the prosecution of corruption-related matters.
At the time Lamola said: “We are at a point wherein our democracy is being suffocated by corruption.
One thing is becoming increasingly clear in postapartheid SA — corruption has disrupted the government’s ability to implement the structural reforms required to move SA away from the two nations, based on race which was orchestrated by the apartheid regime.”
Yesterday, Lamola said: “In recent times we have called upon the legal profession to avail themselves to help the NPA. It’s encouraging to see that spirit of Thuma Mina is alive in the profession.
“While extradition can be a protracted legal process, we assure the nation that the Guptas will definitely come back one day to account in our courts.”
While Katz and the office of the national director of public prosecutions, Shamila Batohi, were not immediately available for comment yesterday, it is understood that Katz and his colleagues will work closely with current Investigative Directorate head Andrea Johnson, who will lead the team that will work to bring the Guptas to justice in SA.
It is not clear when the three will leave for the United Arab Emirates as they are also expected to work with the authorities in Dubai.
Katz is considered the gold standard in SA when it comes to extradition law and has appeared in all of the country's superior courts on extradition-related matters. He and Cohen have also contributed to scholarly and academic publications on extradition.
Immigration law expert Prof Andre Thomashausen said the UAE government would have to “be satisfied there was a bona fide case, or several cases, against these people here in SA, and that it is not a political prosecution or a witch-hunt, and that they can expect a fair trial”.
“It does require something that we have not yet seen, which is a proper charge sheet against the Guptas. Everybody says that they are guilty of the total all-in-all state capture, but the NPA has never shared with the public exactly what crime they committed, when, and by doing what. That is the crux of this whole thing,” he said.
“That is work that a senior counsel like advocate Katz is used to doing. The other challenge is that everything must be presented in the national language, which is Arabic. They have a lot of work to do and I’m sure they will do it.”
We are at a point wherein our democracy is being suffocated by corruption
— Justice minister Ronald Lamola in March
The Guptas were arrested in Dubai last weekend in accordance with an International Criminal Police Organisation (Interpol) red notice, issued in March, and ordering their arrest for alleged money laundering and fraud.
It has been reported that the brothers, who were allegedly picked up at their mansion in the expensive suburb of Emirates Hills, are still in custody at a Dubai police station pending the formal initiation of extradition processes.
Dubai’s justice minister Abdullah bin Sultan bin Awad Al Nuaimi, said: “The arrest of Rajesh Gupta and Atul Gupta, two individuals wanted by SA and pursuant to Interpol’s international red notice request, is the latest example of our commitment and sustained efforts to combat illicit finance.”
Since the arrest of former president Jacob Zuma’s friends, immigration law experts have pointed out that the process to see the Guptas extradited would be cumbersome, and it could be years before they see the inside of a South African court.
This is especially because they are expected to fight it, as they did with the issuing of the Interpol red notice.
In that battle, they did manage to score a minor victory in that their spouses were not included. The NPA did not apply for a red notice in respect of the elder Gupta brother, Ajay, because he is not cited as an accused in the Nulane case.
Procedurally, the South Africans will now have to furnish the authorities in Dubai with a provisional warrant of arrest, as well as an extradition request, within 60 days.
At least one government source said that the warrant has already arrived in Dubai, though this could not be confirmed with the NPA at the time of going to print.
Though the Guptas are in custody in Dubai, extradition is not guaranteed as the treaty makes provision for the UAE to refuse to send them back if the offence for which extradition is requested is considered to be of a political nature.
The Guptas, it was reported this week by News24, are expected to argue this before a Dubai court, saying they are being pursued because of their friendship with Zuma.
It’s not enough for the Guptas to say they’re victims of politics
Thomashausen said that the UAE would want to show it was not a haven for money launderers, and were willing to help any jurisdiction. In addition, courts in the UAE might not be as willing to entertain frivolous delays.
“In SA courts you can be heard with the most absurd, time-wasting tactics. But in my experience, the UAE courts' judges are more authoritarian, more inquisitive,” he said.
“It’s not enough for the Guptas to say they’re victims of politics because they’re friends with the previous president and the current president does not like the previous president. That’s not enough. They would have to really show where the bias has been shown and it might not be easy because nobody has denied the Guptas a chance to defend themselves.”
Thomashausen said it was vital for the current administration to show that state capture had real consequences.
“That’s why the NPA and the Department of Justice will prioritise getting this right, and let’s hope that they will deliver,” he said.
WHAT THE GUPTAS ARE CHARGED WITH
Almost R25m. That’s the amount allegedly stolen from the Free State department of agriculture that the National Prosecuting Authority is hoping will bring two of the brothers back to SA to stand trial.
Atul Gupta and his younger brothr Rajesh are accused number 13 and 14 respectively in the state’s case against former agriculture department head Peter Thabethe and 16 others. The accused include their former business associate Iqbal Sharma and his brother-in-law Dinesh Patel, as well as one of the family’s companies.
The indictment further names Atul’s wife, Chetali, as accused 15, and Rajesh’s wife, Arti, as accused 16. However, Chetali and Arti have not been picked up by the Dubai police along with their husbands because Interpol did not issue red notices for their arrest.
The committee deciding on red notices declined to issue them for the two wives, but issued six of the eight red notices in this case applied for by former Investigating Directorate head Hermione Cronje.
The other four were issued for Gupta associates and Indian nationals also accused in the Nulane case. They include Ravindra Nath, Ankit Jain, Ramesh Bhat and Jagdish Parekh.
Sharma, a former Transnet board member, appeared in the Bloemfontein Magistrate's Court last year charged with procurement fraud involving the R24.9m that the Free State government paid to his company, Nulane Investments.
From there, the money was funnelled to other companies in a “convoluted” manner “without a legitimate business purpose”, including to Islandsite Investments, of which the four Guptas named in the charge sheet were directors at the time.
The money paid to Nulane was ostensibly for a feasibility study for a dairy project in the Free State to better the lives of poor people, but it was given to the Guptas instead.
The Guptas are charged with money laundering and fraud. Of the almost R25m, R19m “was eventually transferred from [Sharma’s] … account into an offshore … account of [Gupta company] Gateway Ltd, held in the United Arab Emirates”.
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