South Africa had 60 days in which to submit a formal extradition application for Atul and Rajesh Gupta to be returned to South Africa to stand trial, after the arrest of the brothers in the UAE in early June.

On Monday, 25 July, National Prosecuting Authority (NPA) head Shamila Batohi told journalists that this deadline had been met. The extradition application — required in both English and Arabic — has been submitted to UAE authorities.

National Director of Public Prosecutions Shamila Batohi. (Photo: Chanel Retief)

In the interim, Batohi said that the Gupta brothers remain in custody after having their bail applications denied by UAE authorities.

Batohi did not give further details of the circumstances surrounding the bail rejections, but the news will be greeted as a positive sign by those fearful that the Guptas may use their deep pockets and expensive legal counsel to evade accountability for State Capture crimes for a long time to come.

‘Exact timeline’ impossible

Batohi cautioned that there was no way to provide an “exact timeline” of how the extradition process may play out from here.

The National Director of Public Prosecutions (NDPP) said that South Africa’s extradition application will now be placed before what is known as an “appeal court” in Dubai’s legal system. There, judges will assess whether the application meets the demands of a rigorous extradition checklist. Thirty days after that procedure is complete, the matter will be taken to the Supreme Court.

Batohi said that if the Supreme Court rules in favour of the Guptas’ extradition, the UAE Minister of Justice must finally sign off on the brothers’ deportation to South Africa.

“It could take a couple of months to finalise,” Batohi said.

The NDPP announced that a “multi-disciplinary team” from the NPA had worked with the Department of Justice, external legal counsel and counterparts in the UAE “to ensure that the request for extradition met all the requirements of the bilateral treaty [between the UAE and South Africa], that it was in accordance with UAE domestic laws, and to build trust with relevant law enforcement partners”.

Batohi said that she was “obviously” not prepared to give the names of prosecutors and investigators who had worked on the matter “for security reasons”.

She subsequently clarified: “Staff have not been threatened, but we are not taking any chances”.

Both Batohi and Justice Minister Ronald Lamola hit back at suggestions that South African authorities could not be trusted to produce a bulletproof extradition application, or to ensure that the case awaiting the Guptas upon their return would secure a conviction.

Assurance

Batohi said she wished to assure “the people of South Africa” that the NPA would not bring a case against suspects unless it met the required standards to give it a reasonable prospect of success.

“Whether there is a conviction or not depends on a whole range of reasons,” Batohi said.

In the Gupta matter, it has now been confirmed that the brothers are facing extradition to stand trial in two criminal cases: the “Nulane matter” — so named for the Gupta-linked company owned by businessman Iqbal Sharma — and the Estina dairy scam.

These two cases will have been carefully selected by the NPA to give the best chance of a successful prosecution, since the terms of the extradition agreement between the UAE and South Africa do not allow for more charges to be piled on once the Guptas reach South Africa. Under the agreement, the brothers may only be tried for the matters specified in the extradition application.

Lamola said that the notion that South African authorities lacked the extradition expertise to pull off the Guptas’ return was baseless, terming local officials “experts in the field”.

The minister said that South Africa dealt with extradition matters regularly, adding “we stand ready to take on any legal challenge in any part of the world.”

Phala Phala

Justice Minister Ronald Lamola. (Photo: Gallo Images / Fani Mahuntsi)

Lamola also used the platform to clarify allegations that his department orchestrated a deliberate cover-up of the theft of money from President Cyril Ramaphosa’s Phala Phala game farm in 2020.

These rumours have been fuelled by a statement from Namibian police in mid-June this year in which it was claimed that they received no cooperation from South African authorities after informing their counterparts of the arrest of burglary suspect Imanuwela David and requesting further information.

Department of Justice Director-General Doctor Mashabane told journalists that multiple aspects of the Namibian claims were inaccurate.

“We wrote back seeking more information,” Mashabane said, adding that the name of Imanuwela David did not appear anywhere on the correspondence from Namibian authorities.

“It was different names altogether.”

This does little to clarify the ongoing confusion over the Phala Phala case, but Minister Lamola was adamant that claims of an official cover-up were nonsense.

“I know there is an excitement to assume some kind of cover-up,” Lamola said drily.

He said he was never made aware of the exchange with Namibian authorities because the matter never reached the level of requiring his attention. Lamola said the same was true for Batohi at the NPA.

For her part, Batohi clarified that the NPA was currently still not involved in the Phala Phala matter because the Hawks are still busy conducting investigations.

Should prosecutions result, Batohi said, “this matter will be dealt with like any other matter”. DM