It was good news to recently see the names of Atul and Rajesh Gupta (and their wives) on a charge sheet filed with the Regional Court in Bloemfontein. Several other accused appeared in the court from June 2021 onwards.

The National Prosecuting Authority (NPA) has since also announced that it will request a separation of trials so that the accused in South Africa can be prosecuted first. I agree with this approach, as extradition proceedings take time and it will be in the interest of justice for the accused in South Africa to be prosecuted first and the Guptas to follow later. 

This is, however, a first important step taken in the extradition process of the Guptas — at least now we have a (public) charge sheet and arrest warrants issued, an important prerequisite for any extradition application.

While criminal conduct transcends national borders, South Africa has concluded numerous treaties and bilateral agreements with several states, allowing for extradition and mutual legal assistance. South Africa, for example, has concluded extradition and mutual legal assistance agreements with the United Arab Emirates (UAE) allowing for several extradition crimes, including those of corruption. 

On 11 April 2021, the UAE cleared all doubts about cooperation by ratifying the extradition treaty with South Africa.

Other treaties, such as the United Nations Convention on Corruption (Sections 44 and 46) — which the UAE and South Africa have both signed and ratified, also serve as a significant legal basis when South Africa considers acting against criminal behaviour as part of an extradition request.

It is, however, somewhat unclear why South Africa had not followed that route even before the UAE treaty was signed — the only reason I can think of is that South Africa, at that time, had no credible case against the Guptas that would pass legal scrutiny during an extradition application.

International agreements oblige states to cooperate with each other in relation to combating criminal activity. While these agreements can never guarantee cooperation, the pressure they exert on a country to meet obligations between them, in conjunction with the political pressures and expectations that a request for assistance may carry, should never be underestimated.

When no treaty between countries exists, a request for extradition can be requested under the internationally recognised principle of comity. When I was still at the NPA, our office requested, for example, Brazil to extradite Gerhardus Jansen van Vuuren to South Africa on a charge of murder. They agreed and later extradited him to South Africa solely on the legal principle of comity.

Our office also received, a few years ago, an application for extradition from Uganda. South Africa had no treaty with Uganda, but President Cyril Ramaphosa gave the green light to proceed on the legal principle of comity. This is normally the procedure followed between countries when no legal treaty exists between them — the state president/president will first have to agree that the application for extradition can proceed. If a treaty between countries does indeed exist, a decision on whether to proceed with an extradition request is normally delegated to the minister of justice.

It is unclear whether South Africa at any stage made a formal request for the extradition of the Guptas on the principle of comity or under any legal treaty (bilateral, regional, or international). There is nothing to prevent South Africa from doing so, at least since the filing of the indictment against, inter alia, the Guptas in Bloemfontein — normally referred to as the traditional or diplomatic approach to extradition.

However, the traditional/diplomatic approach is not the only way to proceed with an extradition application. It can also be done through the Interpol channel, especially if there’s uncertainty as to the whereabouts of the person(s) sought. It can be executed by Interpol through a request for provisional arrest. The request for a red notice is normally issued if there is uncertainty where the person(s) sought is/are or information that they may leave a specific country to avoid arrest.

The red notice is only a notice that the person is being sought — it is not an extradition application. A person can be detained at an airport/port of entry for no more than 48 hours while the specific country applies, based on the application for provisional arrest, for a warrant of arrest to be issued under the detaining country’s legal system.

In a request for extradition, the principle of dual criminality also applies — so the requested country must make sure that they have a similar crime(s) under which that country can prosecute the person sought. The warrant of arrest to be issued will have to depict those crimes — not necessarily the same or similar name of crimes, but at least the same underlying elements.

Some years ago, our office was also requested to assist with a matter where a person was detained at OR Tambo International Airport on a red notice issued by Interpol. As indicated already, keep in mind that a red notice is not an extradition request or an arrest warrant, but a notice only to inform a specific country that a person is being looked for.

A request was made through the Department of Justice to the country which had requested the red notice to provide our office at least with a request for provisional arrest and an indication when the formal request for extradition would be received. The country failed to do so within the 48-hour period and the person was released.

Some countries, unfortunately, use the Interpol red notice to prevent their opponents/critics from travelling and cases may also be politically motivated. I also dealt with one such case. A country applied for extradition, but it appeared from the extradition papers that there was insufficient evidence to link the accused person to the crimes allegedly committed. The extradition application was withdrawn but the red notice, unfortunately, remained in place. It took the person’s counsel many months to convince the Interpol head office in Lyon, France, to cancel the red notice for the person to travel freely again.

Against this background, it is also worth referring to Peter Fabricius’ recent article in Daily Maverick dated 17 November 2021, where the decision by advocate Hermione Cronjé, Investigating Directorate Head, to delay the extradition applications of the Guptas due to a review of the red notices of the Guptas to Interpol, was rightly questioned.

In the article, it is stated that Cronjé was waiting for the decision on the review by Interpol of the notices and this was delaying her extradition applications. Cronjé cannot be criticised for following the red notice route initially, but unfortunately the element of surprise is no more. The application is now in the public domain and my experience of many years has taught me that it is not now a very effective route to follow. The Guptas are surely aware of the applications for red notices.

In any event, I never had in my career a person arrested on a red notice. When one deals with persons at that level, they normally use very innovative means to escape justice. They will not travel under their own name, especially if they are aware they are being looked for by Interpol.

I worked at the International Criminal Tribunal for the former Yugoslavia (ICTY) in the Hague, Netherlands, as a team leader and trial attorney for many years. The Office of the Prosecutor had a policy, in appropriate cases, to request the confirmation judge to make an order for the indictment and warrant of arrest to be kept under seal until an accused had been arrested. It gave the Office of the Prosecutor and other law enforcement agencies sufficient time to locate and arrest an accused. It worked well and many accused were located and arrested following the procedure. Once the accused is arrested and appears before the court, the indictment, and so on, will be unsealed by the judge for all to see.

The better option, at this stage, is to work towards implementing a policy to locate the Guptas in whichever country they may be now. Our Interpol office in Pretoria can play a major role in this regard with other law enforcement agencies, as they have done so before, eg in the location and arrest of Jansen van Vuuren in Brazil. A red notice was issued by Interpol, but at the end of the day, it was good investigation work between law enforcement agencies in South Africa and Brazil that located Jansen van Vuuren.

Once we have credible evidence of where the Guptas reside, we can follow this up with a request for provisional arrest and extradition to the specific country via Interpol.

Due to the current circumstances, we are wasting valuable time while Interpol reviews the red notice. As indicated, we should work closely with other Interpol offices in locating the Guptas. When our office requested the extradition of George Louca from Cyprus, Interpol assisted us with locating and arresting him. We filed a request for provisional arrest and indicated that the final formal request would be filed with the court within 30 days of arrest, as the European Convention on Extradition prescribed. 

Louca was arrested and the formal application was received by the court within the 30-day period. Although he was subsequently extradited to South Africa, he died in prison awaiting trial.

The minister of justice may also play a crucial role in this regard in accelerating the process, meeting with relevant persons from relevant states to assist in opening doors relating to cooperation that were previously possibly closed for several reasons.

It seems that, in recent reports, the minister of justice is more positive that the UAE will work with us in the future to accelerate any extradition application. I just cannot believe, in this modern age, that we cannot establish the Guptas’ whereabouts. It will take the dedicated efforts of a team of experts, but it can be done.

It took 12 years at the ICTY to locate and arrest Radovan Karadzic, the Bosnian Serb political leader in Bosnia and Herzegovina. He was eventually convicted of genocide etc and sentenced to life imprisonment.

In the case of Jansen van Vuuren, it took our office seven years to locate and arrest him — he is standing trial for murder on 18 January 2022. It may take time to locate and arrest the Guptas, but we should never give up. DM

Advocate JJ du Toit is a retired deputy director of Public Prosecutions in Johannesburg and was head of the extradition desk within the office. He was a team leader and trial attorney at the International Criminal Tribunal for the former Yugoslavia (ICTY).

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