Ajay and Atul Gupta. (Muntu Vilakazi/Gallo/City Press)
Much has been made of the 60-day time frame set out in the extradition treaty between South Africa and the United Arab Emirates for the department of justice to formally submit a surrender request to the Emirati authorities for the Gupta brothers, along with a charge sheet setting out the charges they face.
The fugitive brothers were arrested in Dubai on June 2, leaving the director-general of justice with some 50 more days to comply with these requirements, set out in articles 9 and 14 of the treaty ratified exactly a year ago.
It is common cause that Atul and Rajesh Gupta are among the accused in the R24.9 million fraud and money-laundering Nulane Investments case, along with their close associate Iqbal Sharma, who once served as a member of the Transnet board.
The question is what other charges they may face, following their eventual return to South Africa, for further criminal conduct that, on evidence to the Zondo commission, saw R49-billion in state funds flow to their business empire.
The 60-day deadline is not narrowly determinative of the success or otherwise of the extradition request being prepared by the government with the help of top senior counsel. Nor does it prevent the National Prosecuting Authority from bringing further charges against the brothers for financial crimes, or other crimes not carrying a more severe penalty than those underpinning the extradition request, they may be investigating, or may yet investigate at a future date.
This is crucial because just as the fraudulent Nulane feasibility study paved the way for the fleecing of R200 million from the Free State government in the Vrede dairy farm scandal, the indictment of Sharma and the Guptas in that matter is seen as a precursor for their eventual prosecution for the Estina case.
Beyond that still lies the matter of attempting to bribe former deputy finance minister Mcebisi Jonas and other likely corruption charges.
Section 14 of the extradition treaty states that anybody who is provisionally arrested may be released 60 days later if the country seeking their extradition has not submitted a certified copy of the warrant of arrest and “charging document” issued against them.
But sub section 6 stipulates that this “shall not prejudice the subsequent re-arrest and extradition of that person if the extradition request and supporting documents are delivered at a later date”.
The treaty and the Emirati Law on Mutual Judicial Assistance on Criminal Matters require that the South African prosecuting authorities submit a copy of the warrant for their arrest and “the charging document” issued against them.
“They are not precluded from being charged with other crimes that come to light. Those charges may not fully be formulated, on those other charges the docket may have to be readied still, but once the Guptas are in South Africa nothing stops the NPA from charging them with other offences,” Gary Eisenberg, a Cape Town lawyer with expertise on extradition, said on Monday.
However, the treaty does prohibit the country to which suspects are surrendered from bringing further charges that carry a heavier sentence. It also states that the charge for which the person is extradited may be modified provided it is based on the set of facts that informed the extradition request and “is punishable by the same maximum penalty, or a lesser penalty” in the extradition request.
There has been some confusion as to whether South Africa had filed a provisional request for arrest of the two brothers by the time they were apprehended in Dubai or whether this was only done subsequently.
A red notice was issued through Interpol four months ago but some authorities have pointed out that this does not per se constitute cause for arrest, but rather a request that the suspects be located and a determination be made as to whether they pose a flight risk. Only should this happen, and the requesting authority file a request for provisional arrest, would arrest follow.
However, the reading that applied here, appeared to be that a red notice is called to both locate and provisionally arrest a wanted person, pending extradition proceedings.
Eisenberg noted that extradition law is not the only mechanism of mutual cooperation between the two countries. South Africa is a member of the Financial Action Task Force inter-governmental watchdog on financial crimes and so is the UAE through its membership of the Gulf Cooperative Council.
The task force has been exerting pressure on the UAE to surrender suspects wanted for serious financial crimes, he said and a day after the Guptas were nabbed, Emirati authorities arrested a British national who is wanted in Denmark for tax fraud totalling $1.7 billion.
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