International Relations and Cooperation Minister Ronald Lamola. Photo: Phill Magakoe/Gallo Images
The South African government is preparing to submit a second request to the United Arab Emirates for the extradition of Atul and Rajesh Gupta, but the process is being frustrated by a lack of answers as to what went wrong the first time.
A note verbale on the subject is at present being translated to Arabic before it will be dispatched to Dubai, senior officials confirmed this week. The missive reiterates questions South Africa has been raising for months as to the reasoning behind the rejection of its first extradition request in February.
“We have raised a number of questions with the UAE in relation to our extradition request that was declined by their judiciary,” Doc Mashabane, the director-general of the justice department, told the Mail & Guardian.
“Those questions and the answers they will provide are pertinent to what we have to do going forward. A mere resubmission of a new request on the same facts, without them answering the questions we raised, might suffer the same fate.”
The government learnt at Easter that the court of appeals in Dubai had rejected the extradition request for the fugitive brothers, nearly seven weeks after the fact. The decision, the court’s stated reasons and the manner in which it was conveyed to local authorities — attached to a note verbale with no English translation of the Arabic ruling — drew an irate response from Justice Minister Ronald Lamola.
Weeks before word of the ruling arrived, Lamola had written to his Emirati counterpart and requested a meeting in Dubai to discuss the extradition process but received no response. Hours before the ruling reached the justice ministry, Africa Intelligence reported that the Gupta brothers were spotted in Switzerland, forewarning South Africa of what would follow.
“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,” Lamola told journalists on 7 April, the morning after receiving the court ruling.
He described the lack of cooperation from the UAE as “unprecedented in the arena of extradition requests”, and vowed to appeal the decision.
Lamola also raised the spectre of invoking the United Nations Convention Against Corruption, arguing that the UAE had found itself in breach of section 17 through routine obfuscation. It places a “clear requirement on state parties to obtain clarity on a specific matter before refusing an extradition request”, he said.
Since April, the ministry has been advised by authorities in the UAE that appealing to a higher court was not possible as the matter had been decided by a federal court of appeal. Therefore, the only available option was filing the extradition request afresh.
The justice department and the National Prosecuting Authority (NPA) insist they can only sensibly do so once their UAE counterparts have clarified the rationale for the initial rejection.
The judgment set out two main grounds.
The first was that the international warrant of arrest for the brothers on charges of fraud and corruption had been cancelled. This is a sore point for the justice department and the NPA as it seems particularly disingenuous.
National director of public prosecutions Shamila Batohi is on record as saying the NPA was urged by UAE counterparts to include both the first warrant and the second that supplanted it after the charges were amended, only to be faulted by the court for doing so.
The second reason related to the charge of money-laundering the NPA brought against the brothers on the basis of the facts alleged by the state in the Nulane Investments case, the first state capture matter to go to trial.
The prosecution charged that more than R20 million swindled out of the Free State provincial government was laundered through bank accounts linked to the Guptas in South Africa and Dubai. It also based the extradition request on charges of money-laundering in the Estina dairy farm scandal.
Here, the court held that since the crime was alleged to have been committed in both countries, surrender can be denied because the UAE also had jurisdiction to charge the brothers. This did not happen and they were allowed to leave the country before the court’s decision was conveyed to South Africa. Batohi is on record as saying South Africa had no proof that they were ever in custody, only Emirati authorities’ say-so. They brothers moreover managed to become citizens of Vanuatu, an island nation in the Pacific Ocean, while the first extradition request was pending.
One of the key questions the department wants the central authority in the UAE to answer is whether it will indict the brothers for money-laundering, or defer the charge to South Africa.
If pursuing a second extradition bid seems optimistic, officials have said there is reason to insist because wherever in the world they may be, the UAE remained the main base for the Guptas’ business operations. It has also for years been home to Salim Essa, the man memorably described in hearings of the Zondo commission as the family’s “money-laundering lieutenant”.
Essa is among the accused in the Estina trial, and the NPA intends seeking his surrender in due course, adding to the need to extract clarity and cooperation from the Emiratis.
But to date, no answers as to why the Guptas were let go have been forthcoming,
“The back and forth remains a cumbersome and very slow grinding process. We met the UAE at ministerial level in early June and this far there is not anything substantive,” Mashabane said. It has made for tense exchanges with Dubai.
When Lamola met with his Emirati counterpart Abdullah Sultan bin Awad Al Nuaimi in early June, the minister was frank not only about his disappointment at the dismissal of the extradition request, but the failure in the weeks thereafter to respond to, or even acknowledge, a note verbale asking for reasons for the decision.
He was told that Emirati authorities had no knowledge of said note, but refused to accept this, well-placed sources told Mail & Guardian.
At that meeting, the two countries eventually agreed to set up a technical task team that could convene virtually, instead of communicating through diplomatic channels.
Mashabane conceded this week that it has not advanced matters. But he said South Africa was insistent that it needed information before proceeding with a further request, particularly in light of the fact that after submitting the first it was given the assurance that it complied with all legal requirements, only to be dismissed.
“There are aspects to the whole application that require clarity in order for us to handle those issues and make a determination on a way forward,” he said.
“We have repeatedly impressed on them to provide certain answers, including on dealing with requests for mutual legal assistance.”
In order to file a second request, South Africa will have to apply for a new Interpol red notice for the brothers, as the first has lapsed. It has in the interim asked friendly nations to report sightings of the pair.
The Nulane trial ended in the discharge of several key associates of the Gupta. The NPA has petitioned the Supreme Court of Appeal for leave to appeal, arguing that it was a grave miscarriage of justice.