Justice denied: People protest outside the United Arab Emirates’ embassy calling for the Gupta brothers’ speedy extradition to face state capture charges in South Africa . Photo: Deaan Vivier/Getty Images
It has been two months since South Africa filed a request to the United Arab Emirates (UAE) for the extradition of Atul and Rajesh Gupta, but so far the only response has been an erroneous objection that it was not signed off on proper authority.
To wit, the department of justice received a note from Dubai in August asking why the request for the state capture suspects’ surrender was submitted by the National Prosecuting Authority’s (NPA) Andrea Johnson and not by the department as the designated central authority in the matter. This would mean that it did not comply with the extradition treaty the two countries ratified in June last year.
The confusion appears to have been a function of the differences in legal systems and nomenclature between the two countries, plus the fact that communication is translated between English and Arabic. The note verbale reflects that Emirati authorities understood Johnson to be a judge and therefore questioned her role in relation to the request.
The director general for justice, advocate Doc Mashabane, said this was a misunderstanding and the department moved with haste to correct it.
In a reply sent on 24 August, the justice department clarified that Johnson had, as head of the NPA’s investigating directorate, deposed to an affidavit setting out the charges against the Gupta brothers. This was then attached to a request prefaced and signed by Mashabane as head of the department and relayed to the Emirati authorities via the countries’ respective foreign ministries.
It suggested that Mashabane was ready to file a supplementary affidavit to be read with the existing request or, if need be, file a new request based on a founding affidavit deposed to by him. The department also reiterated a request in its initial note verbale, dated 19 August for a video call between justice minister Ronald Lamola and his Emirati counterpart to discuss and clarify any questions that may have arisen in response to the extradition request.
There had been no word from Dubai, following the submission of the extradition request, until Mashabane sent the 19 August missive to his Emirati counterpart asking whether all was in order and the request was receiving due consideration, he told the Mail & Guardian this week.
“We had heard nothing at that point and we were getting concerned. One almost wonders what would have happened if we had not written to them and asked. This is our first request since we concluded an extradition treaty with the UAE, so we do not really have a reference point,” Mashabane said.
It is hard to overstate the weight the extradition bid carries for a government pressed to show that it is willing and able to prosecute state capture, and the department has in recent days reiterated to its Emirati interlocuteurs that their cooperation in ensuring the surrender of the brothers to stand trial is crucial.
State capture: Ajay Gupta, Atul and Rajesh. (Adrian de Kock/Netwerk24)
“We simply have to hope that this will go well and we are doing everything we can, in the diplomatic space, to impress on them how important this case is, but also how important it is in a wider context that there is cooperation in combating serious corruption.”
The request was filed on 25 July, about a week within the 60-day deadline for the state to do so as per the extradition treaty with the UAE, after the arrest of the two brothers in Dubai on 2 June.
It not only conveys the fraud charges they face in the Nulane Investments case, which is currently in the pre-trial stage in the Bloemfontein high court, but names them as suspects in the Estina dairy farm scam.
The indictment details how R19-million of the money paid by the Free State agriculture department to Nulane was laundered through companies directed by the Gupta brothers, their wives and associates before landing, in July 2013, in the Standard Chartered Bank account of the family’s Gateway Limited, incorporated in Ras Al Khaimah in the Emirates.
The Nulane and Estina cases are inextricably linked.
In the first, the Free State was criminally overcharged for a feasibility study designed to ensure that the tender for the dairy farm development project in Vrede went to Estina, from where the state alleges another R280-million flowed to what it terms, in court papers, “the Gupta enterprise”, and eventually helped to fund the infamous Gupta family wedding at Sun City.
Vega Gupta a niece of one of the infamous brothers was married in an extravaganza that reportedly cost R30-million at the five-star Palace Hotel. (Aakash Jahajgarhia/AFP)
The Estina case was previously enrolled but provisionally withdrawn in 2018 after the state encountered several obstacles, among them a lack of cooperation from Emirati authorities on bank transactions reflecting allegedly illicit money flow.
In the days following the brothers’ arrest, government sources privately described the assistance the state received from the UAE as enthusiastic. It was a relief after three years of delay in ratifying the extradition treaty the two countries agreed on in 2018.
The detente was understood in the context of concerted efforts by the UAE to redeem its image as a haven for financial crime after it was grey-listed by the Paris-based Financial Action Task Force in March. It has recently agreed on a number of extradition treaties, including one with Denmark, and currently chairs Interpol.
The day after the Guptas were apprehended, British fugitive Sanjay Shah was arrested in Dubai. Like the Gupta brothers, he was denied bail. Shah was wanted for allegedly masterminding a $1.7-billion Danish tax dividend fraud scheme. Two weeks ago, the Dubai court of appeal rejected Denmark’s request for his extradition.
His lawyers had argued that the treaty signed in March had still not taken effect, hence the Emirates’ Federal Law no 39 on Mutual Judicial Assistance in Criminal Matters applied. Denmark had failed to file all documents required in terms of the act, including a list of witnesses who would implicate Shah in fraud and money-laundering.
The ruling is not final and UAE attorney-general Essam Issa Al Humaidan indicated last week that he would appeal to the court of cassation to grant the extradition request.
But it is against this background, Mashabane said, that the department was following the progress of its bid to have the Guptas returned to South Africa to stand trial with a measure of mounting concern.
“We’ve seen developed nations denied but we have to remain optimistic,” he told Mail & Guardian.
He confirmed that Friday, 23 September marked the end of the 30-day timeframe allowed under the treaty for Emirati authorities to respond to the department’s note verbale dispatched on 24 August. So far there has been none and a date for a court hearing has not been communicated.
An official commented that a measure of “South African exceptionalism” may be needed to trust that the UAE would in due course oblige the department.
The Nulane case is set down for trial in January 2023. In the months since their arrest, the Guptas’ defence counsel have filed several applications for further particulars of the state’s case against them, insistently demanding the date, place and manner in which they and other suspects colluded to defraud the state.
Prosecutors have replied that this is not an absolute requirement when the state relies on the doctrine of common purpose as the court can infer the intent of the accused from their actions, including the flurry of financial transfers that culminated in a deposit in the bank account in the UAE.
“The state’s answer to this question, no matter how many times it is asked, will remain the same. Anything more required is a matter for evidence. The state will lead further evidence … The evidence and the doctrine of common purpose will be argued by the parties during the trial,” the NPA said in papers filed last month.
The criminal law doctrine holds that once wrongdoing has been established on the part of one person in a group that pursued the same outcome, fault attaches to each party. The prosecution does not have to prove that each person took part directly. But the intention of each of the co-conspirators to enable the crime has to be established independently.
Section Federal Law no 39 places an obligation on a requesting state to stipulate the date and place where the crime for extradition is sought.
South Africa’s extradition treaty with the UAE does not echo this requirement and sources said it was hard to say whether advocate Mike Hellens, the Guptas’s senior counsel, was demanding these particulars as part of a strategy to oppose extradition or had been doing what any lawyer would to do to counter the state’s case in the high court.
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