First published in Daily Maverick 168

A wave of high-profile arrests, along with a subpoena for former president Jacob Zuma to appear at the Zondo Commission in the coming weeks, have energised South Africa’s anti-corruption fight.

But all that gees once again highlights delays in bringing State Capture’s alleged prime suspects  – brothers Ajay, Atul and Rajesh Gupta – before court in the foreseeable future.

Apart from Zuma, the Guptas are the Zondo Commission’s raison d’être and Advocate Hermione Cronje, head of the Investigating Directorate of the National Prosecuting Authority (NPA), recently hinted in Parliament that she might have an ace up her sleeve to ensure they are brought to book in SA.

Unfortunately, there are too many ifs and buts around the fate of the trio, who now live in Dubai – while seemingly expanding global operations in Uzbekistan. In seven weeks, on 9 December 2020, it will be five years since Zuma fired former finance minister, Nhlanhla Nene; 2 November 2020 will mark four years since former public protector Thuli Madonsela’s State of Capture Report was released, it will be over three years since the #GuptalLeaks first surfaced in public in May 2017.

The Zondo inquiry has been running since August 2018.

The Guptas have been heavily implicated in all these, but as matters stand there is no charge sheet against any of the brothers or their sidekick, Salim Essa, before a court in South Africa. And, technically, they cannot be labelled as fugitives from justice because experts say that would require an official request for them to present themselves to law enforcement and there is no  indication that this happened.

Two of the Gupta brothers, Ajay and Rajesh, have refused to travel to South Africa – and told the Zondo Commission in September 2018 that they have no faith in South African law enforcement and fear their arrest should they return.

(It is unclear what Atul Gupta’s position is, though it is unlikely that it would differ from that of his brothers.)

It was on that basis that Judge Rayond Zondo declined their application to cross-examine former deputy finance minister, Mcebisi Jonas, over his claims that they had allegedly tried to bribe him with R600-million.

South Africa and the UAE signed an extradition treaty  in September 2018, though it is yet to be ratified by that country. The UAE is seemingly not rushing to resolve this and the Department of Justice in Pretoria confirmed that it was told as recently as 30 September this year that the process remains on hold.

South Africa may seek to rely on other international legal instruments like Article 44 of the United Nations Convention Against Corruption or the International Cooperation in Criminal Matters Act, but experts have warned that the application of any of those is likely to come under legal challenge by the Guptas either in SA or abroad.

Roping in Interpol

For now, South Africa’s options for bringing the Guptas to trial are best dissected in terms of the Criminal Procedure Act.

Defence attorney Daniel Witz told Daily Maverick that someone only becomes a fugitive once there has been a request for them to present to law enforcement and they fail to do so. If an indictment that includes the Guptas is presented at court and they fail to appear, a warrant of arrest may then be authorised.

South Africans should be mindful that failure to appear in court is an offence – albeit one that carries a fine of R300 or three months’ imprisonment or a warning, Witz said.

Contrary to popular belief, an Interpol Red Notice is not an international arrest warrant but rather an appeal from one state to another to aid in the location and arrest of an accused for the purpose of extradition, Witz said.

It is a powerful anti-crime tool though, because it makes it risky for an accused or wanted person to travel freely.

Trial in absentia

In 2006, an Italian court convicted former South African resident Vito Palazzolo in absentia. Similarly, a court in Prague in the Czech Republic sentenced one-time Johannesburg crime boss Radovan Krejcir in 2012.

However unique the Gupta case and the circumstances may be, the SA Constitution does not provide for such an approach.

Professor Jamil Mujuzi from the University of the Western Cape’s law faculty says South Africa requires an accused to be present in the country.

Although the Criminal Procedure Act allows for instances when a trial may take place in the absence of an accused, it does require the person to be physically present in the country.

Witz agreed but said there have been instances where local courts have proceeded with the trial of an accused when, for instance, their co-accused had absconded.

“However, the court will exercise discretion based on the circumstances of each case by determining whether or not it will affect either or any of the accused’s right to a fair trial.

“There is no general provision for a trial in absentia in SA. The general principle stands, in accordance with the constitutional right to a fair trial, that an accused has the right to be present at all times during the trial.”

Legal commentator and defence attorney, Ulrich Roux, also cautioned that any suspect, including the Guptas, when cornered abroad, will most likely challenge efforts to have them sent to South Africa for prosecution.

Again, Roux flagged requirements such as a police CAS number, a charge sheet and a decision of the NPA to prosecute, as fundamentals that would be considered by foreign courts.

Having been a no-show throughout South Africa’s State Capture cleanup efforts, the Guptas are unlikely to rush “home” for a criminal trial and, as such, the country’s prosecutors may need to get equally crafty about how justice would be seen to be done. DM168