‘We still intend to engage our counterparts as requested in March to ensure that the decision of the court is promptly appealed,” Minister of Justice and Correctional Services (DoJ), Ronald Lamola, said on Friday 7 April.

Lamola was updating the media on the Gupta extradition process, confirming that South Africa’s extradition request to have the notorious Gupta brothers, Atul and Rajesh, extradited from the United Arab Emirates (UAE) had been dismissed “on a technicality”. 

Read in Daily Maverick: The Guptas are gone. No one is to blame, everyone did their best. The end

The Gupta brothers’ extradition hearing was concluded in Dubai on 13 February 2023, with the court denying South Africa’s request. However, the DoJ was clueless about this until Thursday night, 7 April, after it was finally provided with a note verbale from the UAE.

“We learned with shock and dismay that the extradition hearing had been concluded,” said Lamola.

Media Statement | Update on the Gupta Extradition pic.twitter.com/BoYJYpoYKd

— Ministry of Justice and Correctional Services 🇿🇦 (@Min_JCS) April 7, 2023

Atul and Rajesh Gupta – State Capture’s prime suspects – were arrested in Dubai in June 2022. They are wanted by South Africa in connection with fraud and money laundering charges flowing from a Free State government contract commonly known as the Estina dairy scandal. 

Read more in Daily Maverick: Top 10 sites of State Capture: What the Guptas really cost our country

On 24 February, Daily Maverick’s Jessica Bezuidenhout sent the DoJ and Lamola’s office 15 questions relating to the Gupta extradition process, which included whether any representative of the South African government had physically seen a Gupta brother in custody or if they had seen a mugshot of Rajesh or Atul. 

The DoJ never answered, but it appeared officials were searching for answers. 

Read in Daily Maverick: Ten months and counting — no sign of a Gupta, no response from justice department

As it turns out, by the time Daily Maverick’s queries had been sent, the court in Dubai had already concluded the extradition hearing.

According to Lamola, two reasons were given for the Dubai court’s decision: the first was that the charge of money laundering for which South Africa sought the Gupta’s extradition, was also an offence in the UAE and therefore they could be prosecuted in that country. The second reason related to the validity of an arrest warrant submitted as part of South Africa’s extradition request. 

“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,” said Lamola.

On Friday, DoJ director-general Doctor Mashabane confirmed that the Guptas were no longer in custody in the UAE. It is unclear when exactly the brothers were released.

Officials from the DoJ appeared visibly vexed with UAE authorities’ communication throughout the extradition process. National director of public prosecutions, Shamila Batohi, was resolute that the National Prosecuting Authority (NPA) and the Department of Justice had made every effort to follow all legal processes. 

“South Africa ticked all the boxes and did everything that was required to ensure that our extradition had the best possible opportunities for successful application. There was nothing more that South African authorities could have done,” said Batohi. 

“It does appear clearly that they proceeded with the court case without informing us through the diplomatic channels, which would have been through our embassy,” added Mashabane. He said the South African embassy in Abu Dhabi had received no information about the matter. 

This is at odds with claims made in a statement carried by the state media agency on Friday evening, where the UAE said its judicial authorities had briefed their South African counterparts on proceedings “at every step”.

“Following the decision by the Dubai Court of Appeal, the UAE judiciary underscored that South African authorities are able to resubmit the extradition request with new and additional documentation,” continued the statement.

Lamola said on Friday that the DoJ intends to appeal the decision. But with the whereabouts of the Guptas currently unknown, and with any prospect of an appeal remaining in the hands of the UAE’s justice department, it raises concerns about South Africa’s prospects of ever bringing the Guptas to book.

Read in Daily Maverick: Everyone but the Guptas feels the heat as SA ups the ante on State Capture prosecutions

However, officials from the DoJ and NPA said they would continue to fight to ensure the Guptas face justice. 

“We have to ensure that as a country – irrespective of where they are – we do everything possible to ensure that they are brought back to face justice in South Africa,” said Batohi. “We will leave no stone unturned.”

Extradition processes

“An extradition is both a legal process and a diplomatic/political process. Even if you are successful in the legal process, it will not automatically translate to success in the diplomatic/political process,” said director at the African Centre for Transnational Criminal Justice at the University of the Western Cape, Prof John-Mark Iyi.

“What I find interesting is that the South African authorities claim that the UAE did not inform them about 1) the decision, and 2) that the UAE authorities did not inform them to supply additional information that they were missing,” he said. 

This, he says, would be a breach on the part of the UAE because the treaty requires that they request South Africa to provide additional information if, for example, the information South Africa had provided was inadequate. South Africa should be informed so as to submit additional information before a decision is taken on its extradition request, he said.

“Whether they did inform South African authorities for additional information or whether they did not, I can’t say.”

‘National embarrassment’

The news that the government’s mission to extradite Atul and Rajesh Gupta from the UAE has failed, has been met with mounting public criticism and labelled a major setback for accountability for State Capture crimes. 

DA MP Glynnis Breytenbach described the failed Gupta extradition as a “national embarrassment” which showed that former president Jacob Zuma’s “tentacles are very alive and well in the current Cabinet and government”.

“The question now stands, whether there was ever serious intention to successfully extradite these perpetrators, bearing in mind the consequences that would have ensued for so many highly placed ANC members,” said Breytenbach in a statement on Friday.

“This is a massive failure on the part of both institutions and a serious blow to holding the perpetrators of State Capture accountable.” 

She said the DA would write to the chairperson of Parliament’s Committee on Justice and Correctional Services to request an urgent meeting with the DoJ and NPA. 

ActionSA leader Herman Mashaba said in a statement that his party was of the view that the failed extradition request was an indication South Africa “has lost the respect of the international community”.

“It is extremely concerning that South African diplomats in the UAE – who are paid to advance the country’s interests – failed to duly follow the court proceedings, engage with their UAE counterparts and keep the South African government updated. 

“Both Justice Minister Ronald Lamola and International Relations Minister Naledi Pandor have difficult questions to answer in this regard,” he said. 

Speaking to SABC News on Friday, Congress of the People (Cope) spokesperson Dennis Bloem said President Cyril Ramaphosa and his government were “losing the battle against corruption and State Capture.

“This Gupta extradition saga doesn’t give us hope that those who are responsible for collapsing the economy will ever see the inside of a prison cell. The criminal justice system is really failing this country… Cope is extremely concerned about the state of our criminal justice system.”

Director of the non-profit organisation Open Secrets, Hennie van Vuuren, said he believed it was important to be able to level criticisms at both the UAE and South African governments. 

“I would say it’s very clear that the authorities in Dubai play a very duplicitous game, and the South African authorities would’ve been foolish if they didn’t believe that from the get-go. 

“Dubai is a small criminal enclave… Anyone who believes that you’re going to get a fair trial in the UAE lives in Cloud Cuckooland. And that’s something that the national director of public prosecutions and the minister of justice should’ve been alive to from the get-go,” Van Vuuren told Daily Maverick.    

Van Vuuren described the UAE’s delayed diplomatic note as a “slap in the face”.

“It shows, simply, that the authorities there don’t take the South Africans seriously, and they probably never did.”

Van Vuuren warned that failure to extradite the Guptas to face justice for their crimes “sends the worst possible message”. 

If South Africa fails at accountability for these serious crimes, “you set yourself [up] for the next phase of who else is going to come along”.

Citizens of the world

Last week, African Intelligence reported that the brothers were seeking asylum in two African nations: Cameroon and the Central African Republic (CAR). The latest report by the same publication was that the Guptas had been sighted in Switzerland in late March. 

On Friday, Mashabane said South Africa had no immediate information about the accuracy of media reports relating to the Gupta’s being sighted in Switzerland or their alleged asylum applications to Cameroon and the CAR.

“We don’t have information ourselves,” he said.

In addition to this, Mashabane said South Africa only discovered that the Guptas had acquired citizenship of Vanuatu, an island nation in the South Pacific Ocean, after receiving the diplomatic communication from the UAE embassy on 6 April. 

“In the communication we received, the judgment makes reference to the Guptas being citizens of a country called Vanuatu in the Pacific islands. This was a new development for us because previously their status was that they were carrying South African citizenship,” he said. 

The Interpol Red Notices that led to the Gupta brothers’ arrest are no longer valid, so South Africa would need to seek new ones. This would make the fugitive’s ability to travel to other countries very difficult. 

Prof Iyi said, in his view, South Africa’s best course of action would be to go through Interpol once again.

“I think South Africa’s best option would be to approach Interpol to issue a Red Notice for the Gupta brothers to flag them and pin them down somewhere, and then take it from there,” he said. DM