The National Prosecuting Authority (NPA) and the department of justice are in a desperate scramble to get the freed Gupta brothers back in the country to face justice.
A meeting is planned for early this week to decide a way forward after South Africa's application to the United Arab Emirates (UAE) to extradite Rajesh and Atul Gupta was rejected by a court.
Justice department director-general Doctor Mashabane told the Sunday Times yesterday that they have options but would study the full judgment before deciding on their next move. The options include appealing the judgment and resubmitting the extradition application from scratch.
Mashabane said the Emiratis told his department that on the charge of money-laundering, the crime the Guptas allegedly committed in both the UAE and South Africa, UAE law dictates that extradition can be denied because the Emiratis have the jurisdiction to prosecute the crime. On the charge of fraud, the court found the arrest warrant relating to this charge had been cancelled.
“There's no clear indication that the Emirati authorities have any intention to prosecute the Guptas [for money laundering] ... so they should have indicated that they intend prosecuting them on that charge. That's grounds for appeal,” Mashabane said.
Mashabane added that they were also considering appealing on the point that the NPA withdrew the initial arrest warrant containing the fraud charges but replaced it with a new one.
NPA spokesperson Mthunzi Mhaga said the “new warrants were issued at the time of the submission of the extradition request when it was realised that the first warrants were not accurately speaking to the charges for which extradition was being sought”.
He confirmed there will be a meeting on Tuesday “to decide the way forward”.
Mashabane described engagements with the Emiratis as a “frustrating, long and laborious process”.
The Gupta brothers have been implicated in the Nulane Investments R24.9m fraud and money-laundering trial in the Free State high court in Bloemfontein. The NPA intended to try them separately if the extradition succeeded.
I think it's done; the Guptas are gone. The fact of the matter is that we blundered because we did not follow up
— Llewellyn Curlewis, law expert
Mashabane cited a similar recent case involving Denmark in which an extradition application to the UAE of an alleged tax fraudster was initially denied but later granted on appeal.
Mashabane said it was hoped that after clarifying certain facts the Emirati authorities could change their minds. “They don't say the Guptas didn't commit any crime in South Africa. They're simply saying there's a cancelled warrant ... and did not even bother to ask [us] about it,” he said.
“A fresh extradition request could be resubmitted. That's why it's urgent for us to get a full judgment so we can study it.”
Mashabane described the Emirati legal system as “very secretive” and accused UAE authorities of keeping his department in the dark about developments on its application, including the dates of hearings.
UAE justice minister Abdullah bin Sultan bin Awad Al Nuaimi said on Friday the Dubai court of appeal had decided to reject South Africa's extradition request after “a comprehensive and thorough legal review process that found that the request did not meet the strict standards for legal documentation as outlined in the extradition agreement between the UAE and South Africa”.
“For the extradition request concerning the charge of fraud, article (3/9) of the extradition treaty stated that the extradition request shall be accompanied by a copy of the arrest warrant order, whereas the submitted documents for the two accused were attached with the cancelled arrest warrant order, thereby failing to meet the extradition conditions.”
The statement added that after a “comprehensive investigation” the file was referred to the court of appeal which after three hearings issued its decision.
“At every step, UAE judicial authorities briefed their South African counterparts on proceedings.”
Mashabane disagrees.
He said “they were not giving us the best of assistance”, adding that the court had pronounced on February 13 while the South Africans had been asking for the date of the first appearance.
Mashabane said the information received from the Emirati authorities about the Guptas being in custody was also apparently untrue. The brothers were spotted in Switzerland last month, travelling on their South African passports, according to a report by news website Africa Intelligence.
Mashabane said another option the country had was “exerting political, diplomatic pressure” including mobilising other countries to force the UAE to co-operate through diplomatic platforms and the UN convention against corruption, to which South Africa and the UAE are signatories.
“The UAE hasn't been coming through on many requests, including the request for mutual legal assistance on the banking records [of the Guptas]. We asked them for bank accounts which would have helped with other cases here at home.”
At a briefing yesterday to announce the arrest of fugitive Thabo Bester, justice minister Ronald Lamola tried to assure South Africans that they would get the Guptas to face justice — but “it will take some time”.
Law expert Llewellyn Curlewis of the University of Pretoria described the failure to extradite the Guptas as a “big blunder by South Africa and a big opportunity missed”. He said an appeal may not be possible because the decision was made back in February.
“I think it's done; the Guptas are gone. The fact of the matter is that we blundered because we did not follow up ... with such a high-profile case. Writing letters is not sufficient.”
Curlewis said he expected the government to send officials to the UAE to keep tabs on its application.
“We have an ambassador there. Is this the best we can do? Write a letter and hope for the best?”
Dr John-Mark Iyi, director at the African Centre for Transnational Criminal Justice at the University of the Western Cape, believes South Africa has few viable options, which include restarting the entire process by issuing a fresh Interpol red alert that would “restrict [the Guptas'] movements”.
“Depending on where they're caught, South Africa could set in motion plans to trigger their extradition. Extradition takes a long time and requires political will from the extraditing country,” Iyi said.
NPA head Shamila Batohi said on Friday it was “confusing” that the issue of warrants was included as one of the reasons the extradition of the Gupta brothers was not granted.
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