International Relations and Cooperation Minister Ronald Lamola
South Africa will pursue every avenue to secure the surrender of two fugitive Gupta brothers after the United Arab Emirates’ (UAE) rejection of an extradition request, Justice Minister Ronald Lamolo said on Friday, but faces serious obstacles, starting with their whereabouts being unknown.
Atul and Rajesh Gupta became free agents on 13 February when a court in Dubai declined South Africa’s extradition request on technical grounds, including that an initial warrant for their arrest on fraud and corruption charges had lapsed. This was despite a second warrant containing a comprehensive account of the state capture charges against them being issued and included in the application.
A visibly riled Lamola deemed unacceptable both the court’s reasoning and the six-week delay in informing him of the decision.
“The reasons provided for denying our request are inexplicable and fly in the face of the assurances given by Emirati authorities that our requests meet their requirements,” the minister said, adding that the lack of cooperation was “unprecedented in the arena of extradition”.
Lamola only learnt of the outcome of the hearing, and the fact that there had been one, when the director general of the department of justice, Doc Mashabane, fetched a diplomatic note from the Emirati embassy in Pretoria at about 8pm on Thursday evening.
The note contained another curve ball — it informed South Africa that the two brothers have recently become citizens of Vanuatu.
Mashabane confirmed that South Africa does not have an extradition treaty with the Pacific Ocean nation, located some 1 700km east of Australia.
It was reported this week that they had recently travelled to Geneva on their South African passports. Mashabane said this has not been confirmed but South Africa does have an agreement with Switzerland, and would request mutual legal assistance from any country hosting the brothers.
It would, as a first step, obtain the full UAE court ruling and explore whether there was any realistic hope of appealing it. He said there was some hope to be drawn from the fact that other jurisdictions, who have suffered a similar setback in securing the extradition of fugitives from the UAE, succeeded on appeal.
National director of public prosecutions Shamila Batohi explained that technically, the National Prosecuting Authority cannot appeal the court’s decision but would rely on its counterparts in the UAE to do so.
“There are prosecutors and there is an international cooperation section in the UAE that deals with this matter. The international cooperation section, the colleagues that we have been dealing with, are based in Abu-Dhabi and the prosecutors in this matter are based in Dubai, and we have been cooperating with both these authorities,” she said.
“At the end of the day, I am not sure myself which authority actually decides … in terms of the process moving forward, but we are engaging with both authorities.”
She said it remained to be seen what the effect of the six-week delay in informing South Africa of the ruling would be on any hope of appeal.
Officials confirmed privately that an appeal would only be feasible if the brothers were still in the UAE.
Batohi said: “The delay of six, seven weeks of us being even informed is very concerning and I’m not sure whether it will be dispositive of the appeal processes because we need to understand the technicalities etcetera of timelines in the UAE, but it is very concerning that it took this long for us to be formally informed of this issue.”
She added that South Africa had caught wind of the fact that the court hearing may have been concluded and then made a formal inquiry about the process.
“At this point I can’t say what impact it could potentially have on the legal process, going forward, in the UAE.”
Asked whether South Africa had been given proof that the Guptas were ever in custody, the minister said none besides Dubai’s diplomatic say-so, which it was obliged to accept.
“The only evidence we have is the note verbale, which is the formal communication between the two central authorities. As the government of South Africa we take that as evidence that they were indeed arrested and that they were in prison. We don’t have any other evidence.”
Lamola confirmed that the South African authorities were not afforded the diplomatic courtesy of an English version of the summary of the court’s decision, adding that officials worked through the night to translate it from Arabic. “So that is the life that we have been living with the authorities in the UAE.”
The note verbale received this week followed after three missives sent by South Africa in as many months went unanswered.
In the last, sent in early March, Lamola asked to visit his counterpart in the UAE for talks.
Mashabane ventured that he wondered whether South Africa would “ever have been informed” of the court ruling had it not persistently pressed its Emirati interlocuteurs for answers in the past fortnight.
Lamola dismissed any suggestion that South Africa had failed to do all that was necessary to ensure the request was successful.
“We have complied with every letter of the extradition treaty,” he said, adding that this included flying Arabic translations of documents to Dubai.
“The central authority in the UAE and the prosecutors in the UAE confirmed that all our papers were in order. So, from our side we complied and that is why we are bemused by this judgment that cites technicalities. We find it shocking that such a technicality has been cited when all these efforts were made by us.”
Even if there had been confusion about a warrant lapsing, a simple request to South Africa could have clarified the situation, he said, stressing that the failure to do so flouted section 17 of the United Nations Convention Against Corruption.
“Article 17 places a clear requirement on state parties to obtain clarity on a specific matter before refusing an extradition request. So there is no basis whatsoever for this technical judgment that we have been given.”
Batohi said the issue of the warrant cited by the court could have been easily resolved.
“It was not complicated. The first warrant did not include all the charges. As responsible prosecutors, these were then amended in order to make sure that all of the charges were included in the second warrant and the first warrant was then cancelled because it was no longer applicable. But it appeared that this was included simply to indicate a timeline.
“So the fact that the UAE court has now regarded this as a critical issue, and one of the reasons for in fact denying the application is something that is confusing and in our opinion, does not make sense.”
South Africa sought the extradition of the two brothers to bring them to court to face charges of fraud, corruption and money-laundering stemming from the Nulane Investments scam. They have also been named as suspects in the Estina dairy farm scam.
In the Nulane case, 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 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.
The second reason cited in the court ruling for denying the request was that “on the charge of money laundering the crime in question is alleged to have been committed in the United Arab Emirates and South Africa, in terms of the federal laws of the United Arab Emirates extradition can be denied because the United Arab Emirates has the jurisdiction to prosecute the crime”.
Lamola said his first step would be to speak to Emirati authorities to establish whether an appeal could be lodged, but would readily engage the United Nations in terms of the convention on corruption to which both South Africa and the UAE were signatories.
“The United Nations Convention Against Corruption does provide other avenues which we can follow in relation to the matter. We will pursue all those avenues so this will never be the end of the matter.”
He stopped short of noting that if a dispute arose in a process initiated in terms of the treaty, South Africa could take the matter to the International Court of Justice.
Batohi indicated that South Africa would also apply for a new Interpol red alert for the apprehension of the Guptas.
“The red notices have lapsed once the warrants were issued and executed and this means that there will have to be an application for new red notices. But we will look at all the technical details and do all that is necessary.”