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THE GREAT ESCAPE

37-day head start: Guptas’ lawyers knew about failed extradition long before SA was informed

The UAE's closed justice system and failure to inform South Africa of proceedings suggest the Gupta brothers' lawyers were in the loop when an extradition judgment was handed down, giving them a 37-day head start to get away. South Africa has now been left with little recourse but to ask for accountability from the UAE for their decision.
37-day head start: Guptas’ lawyers knew about failed extradition long before SA was informed UAE Justice Minister Abdullah bin Sultan bin Awad Al Nuaimi. (Photo: UAE justice system)

Senior counsel for the Gupta brothers were reportedly at the UAE court when the failed extradition judgment was handed down on 13 February, giving the fugitives a 37-day head start to get away.  

The UAE only told South Africa on 6 April in a hasty Arabic-language “note verbale” (diplomatic communication) after reports in Africa Intelligence news service that the brothers had been spotted in Switzerland.  

The South African government has investigated the secretive extradition hearings and judgment. A clear picture of Dubai’s duplicity is emerging, say sources with first-hand knowledge of events. 

Lawyers who have worked on State Capture cases say keeping the judgment quiet but having the Gupta lawyers in the loop provided time for a great escape before Interpol Red Notices could be retriggered. The police said on Thursday that the Red Notices, which indicate travellers like the Guptas are wanted fugitives in Interpol member nations, are still valid.  

The graphic below shows how often South Africa requested status updates and cooperation from Dubai, which were not forthcoming from the start of the extradition process in June 2022. 

A timeline of the failed Gupta extradition to South Africa.

The forensics suggest the UAE never intended to send the Guptas back. According to National Prosecuting Authority (NPA) officials, detailed work has shown that the judgment contains factual misinformation or disinformation. 

Read more in Daily Maverick: Dubai prosecutors confirmed in writing that the Gupta extradition documents were in order

According to the UAE statement, the extradition for fraud, corruption and money laundering failed on two critical grounds. The first was that it contained a cancelled warrant of arrest. The second was that the requesting country (South Africa) and the requester country (UAE) had concurrent jurisdiction on the money laundering charges. Concurrent jurisdiction can be a limiting factor. 

The NPA can show that it appended both the cancelled warrant of arrest and a new warrant to documents. The UAE acknowledged the legal documents in writing, as Daily Maverick reported here

UAE Judge Abdul Rahman Murad Al Balushi suggested that South Africa amend its indictment to exclude foreign exchange violations, and the NPA included the cancelled arrest warrant to show it was done. This was because of the potential for “double criminality” where extradition is not granted and where a violation of the law also happens in the requester country.  

Port Vila, the capital of Vanuatu. (Photo: Flickr)
Port Vila, the capital of Vanuatu where the Guptas have acquired citizenship. (Photo: Flickr)
Port Vila, the capital of Vanuatu. (Photo: Flickr)
Port Vila. (Photo: Flickr)

A new arrest warrant was issued in July for fraud, money laundering and corruption. An Arabic translation was appended to the bundle of extradition documents. It was inconceivable that South Africa would request extradition and not include valid arrest warrants in its application documents, say sources. It transpires now that the valid arrest warrant may not even have been placed before the court, say senior NPA officials.

UAE prosecutors argued the extradition case on behalf of the South African government.   

The extradition judgment also found that because the UAE has concurrent jurisdiction on money laundering, it could not return the brothers to South Africa on this charge. 

Usually, when such jurisdictional challenges arise in extradition hearings, parties discuss these formally and informally to arrive at decisions. Dubai is a tax haven and also a money laundering mecca. 

Read more in Daily Maverick: South Africa set to démarche UAE ambassador on Guptas’ extradition judgment failure

At no point during months of meetings did Dubai say it intended to prosecute the Guptas for money laundering, and with Ajay and Atul Gupta now reportedly on the run, this is unlikely to happen. Despite repeated government attempts to get updates on the extradition, Dubai did not inform South Africa of three court appearances. However, NPA officials believe the Gupta brothers’ lawyers were present at these appearances. The UAE has a closed justice system, so courts are not open to the public. 

In a statement on April 7, the UAE said it had informed South Africa about each of the three appearances — a claim denied by the government. South Africa had also repeatedly asked whether the Gupta brothers were in custody, but reports of their travels suggest they were not. DM

Comments (10)

Dhasagan Pillay Apr 14, 2023, 11:14 AM

Oh what a slippery slope we fall down when we demand international justice for us, and then fork our tongue and deny that we are accountable to deliver it in a commensurate exchange... you know like when you ratify that you will abide by a statute.

André Pelser Apr 14, 2023, 11:39 AM

The role of the SA embassy is pertinent, it was their responsibility to monitor events and report back to the SA government - clearly they are incompetent, or were they party to the failed process? The exculpatory obfuscation of the SA government is not convincing, ANC inner circle beneficiaries of Gupta largesse at SA taxpayers expense will obstruct any attempt to prosecute the Guptas in SA at all costs, aided and abetted by a lame duck president.

louis viljee Apr 14, 2023, 12:52 PM

Of course, had our government not allowed them to abscond in the first instance, none of this would have happened... Where does the rot start?

Helen Harper Apr 14, 2023, 01:21 PM

I agree with Grham Nelson and would fully support a Emirates Airline boycott. If enough travellers join in it would send a message to UAE that they need to reconsider their foreign affairs policy if they want to be part of a decent law abiding world. I also agree with Kevin Immelman - unfortunately, once again, our foriegn policy is totally part of why we are fast becoming a failed nation. The latest Russian cordial relations are also going to come back and bite the average, law abiding, decent South African citizen.

Kanu Sukha Apr 14, 2023, 02:08 PM

All along we thought Switzerland is where people with 'cash' to hide is thee place ! Now it seems they could even be giving the Guptas a haven . Anyone who thinks that any of those oil rich middle eastern thugocracies, or the Russian and Chinese et al systems (which the ruling party here aspires to) are going to co-operate with any semblance of 'justice' being served ... are wholly misguided. Their entire judicial 'system' (for the lack of a better word) is organised quite deliberately to (and Israel is quickly heading that way) support and endorse every thing the 'rulers' want them to do. Separation of power is for the birds. A relatively 'independent' judiciary is anathema to them . In which democracy do we find 'hearings' being conducted behind 'closed doors' ?

Vas K Apr 14, 2023, 10:29 PM

So the sand jockeys are as corrupt as their ANC counterpart. No surprises there. But what really surprises me, even shocks me, is the lethargy of the South African public. In this country of daily frantic protests, seemingly nobody bothered to go to UAE embassy to tell them what we think of them. This is the ultimate insult to our country and by now I would expect hundreds of thousands vocal protesters there.

Johann Conradie Apr 16, 2023, 04:56 AM

normally I would expect the DA to be running to stage a protest, but with so many Emirates flights to Cape Toen…

Patricia Sidley Apr 15, 2023, 07:19 AM

Who are their lawyers? The story does not say.

Carsten Rasch Apr 15, 2023, 07:22 AM

A truly despicable bunch. Even more despicable than our own bunch, which says something. If ever there was a nest of vipers, the UAE (aka the cloaca of the world of finance) is it. A pox on you if you fly Emirates. I stopped a loooong time ago.

Jane Crankshaw Apr 15, 2023, 05:36 PM

Put Exchange Control violations back onto the charge sheet and get them on that! Money laundering is the one sin that the economic world agrees on….and Dubai is the capital of Money Laundering so no wonder they wanted it off the charge sheet! Get the Guptas on the small stuff with the worlds approval.

Dietmar Horn Apr 16, 2023, 11:28 AM

The UAE has always been a state owned by Arab family clans. All government action is only for the benefit of these clans. Legal and diplomatic institutions only outwardly reflect western-democratic standards, owing to the image of a modern business location. The ANC is a post-communist criminal organization to maintain power for an elite who, following the example of Putin's oligarchs, have enriched themselves at the expense of their own people. The Guptas are an Indian family clan with the help of which the ANC has attempted to take over the South African state along the lines of authoritarian, pre-democratic systems of rule. They all share a hatred of western-democratic standards because they limit the power of the ruling ideology in time, so they are all in the same boat. It is therefore completely irrelevant where exactly the cause of the failed delivery lies.