South Africa’s legal authorities are counting on politicians for help after concluding that the UAE government was duplicitous in its handling of South Africa’s application for the extradition of the Guptas.

They say that the Guptas’ lawyers were present in three secret court hearings in Dubai on extradition – from which the South African government was excluded and which it was not informed about. It took the UAE authorities 37 days to inform Pretoria that the court had rejected its extradition request.

By then, the 30-day period for South Africa to appeal the decision had lapsed. The delay also gave the Guptas time to skip Dubai before new Interpol Red Notices requesting their arrests could be issued.

Officials say the legal reasons the UAE has offered for rejecting the extradition are spurious and that they are convinced the decision was political. Some legal sources suspect money changed hands.

But, in any case, they say the case is now in the hands of the South African executive which should demand explanations and remedies from the UAE – possibly in a “demarche” on the UAE ambassador to South Africa, MSSM Alhameli.

The South African officials say the government must at least demand that the UAE should condone Pretoria missing the deadline to appeal the court’s decision – on the grounds that the UAE authorities violated the extradition treaty between the two countries by failing to inform Pretoria of the court decision in time.

There is confusion about this demarche which is an established diplomatic practice of summoning a foreign diplomat to receive a stern rebuke or complaint. Reliable sources have told Daily Maverick that the UAE ambassador will be demarched. However, presidential spokesperson Vincent Magwenya later said there would be no demarche although there would be “consultations”.

Alhameli himself told Daily Maverick he would get back to us to inform us if he had been demarched or would be. But he never did.

Minister of Justice and Correctional Services Ronald Lamola. (Photo: Darren Stewart / Gallo Images)

However, a senior South African official told Daily Maverick that there probably would be a demarche, though it would probably be done by a department deputy director general and not the Minister of International Relations and Cooperation (Dirco) Naledi Pandor. Such a relatively low level intervention would suggest that Pretoria might be trying to defuse the issue – even though Justice Minister Ronald Lamola has expressed outrage, saying “”this level of noncooperation is highly unprecedented” and that SA was “being denied justice”.

Officials say a major pressure point which South Africa could exploit is that the UAE is trying to get off the greylist of the Financial Action Task Force (FATF), which it was put on because of its notoriety as a haven for money laundering – which was one of the charges against the Gupta brothers. South Africa itself was put on the greylist in February, also in part for laxity in combatting money laundering.

The sources said South Africa might raise the FATF issue in Washington in the coming days at the big gathering of finance ministers for the IMF and World Bank spring meetings.

There is some expectation that the US government might also put pressure on the UAE, on South Africa’s behalf, having placed the Gupta brothers on its Global Magnitsky sanctions list several years ago – though this comes at an awkward time, when Washington is growing increasingly annoyed by South Africa’s closeness to Russia and its refusal to condemn its invasion of Ukraine.

The Gupta brothers speak to City Press from The New Age newspaper’s offices in Midrand, Johannesburg, South Africa, on 4 March 2011. (Photo: Gallo Images / City Press / Muntu Vilakazi)

Another pressure point legal experts suggest South Africa should use is to complain to the Conference of Parties of the UN Convention Against Corruption, which meets at the end of the year in Washington. Both South Africa and the UAE have signed the convention which places an obligation on signatories to extradite suspects or prosecute them.

One reason the Dubai court gave for rejecting South Africa’s extradition request was that money laundering was also a crime in the UAE, so the UAE could itself prosecute the Guptas brothers. But legal officials say that the UAE has given no indication that it intends prosecuting the Guptas – and in fact may even have let them leave the country.

Another possible political and diplomatic pressure point is that the UAE has applied to join BRICS – the Brazil, Russia, India, China and South Africa bloc which is becoming increasingly important as a counter to the West. Several other countries have applied to join and these applications are expected to be considered at the next BRICS summit, which South Africa will host in August this year – giving it some extra say in the decision.
But one informed observer cautioned that the UAE’s application “is a double-edged sword. On the one hand it gives us leverage. But it might instead be the reason we don’t want to apply too much pressure. Maybe we don’t want to ruffle too many feathers right now with what’s happening in Russia, Putin’s visit and so on. That could be a big political aspect of this equation.”

He was referring to the growing controversy about whether or not Russian President Vladimir Putin will attend the BRICS summit. Pretoria has officially invited him but, as a member of the International Criminal Court, it might also be obliged to arrest him as the court has issued a warrant for his arrest for alleged complicity in abducting Ukrainian children to Russia.

So it’s not yet clear what the diplomatic fallout from the fiasco will eventually be. One senior SA diplomatic source insisted that “this issue will be bracketed and separated from our strong bilateral relations. Remember, the UAE is seven semi-autonomous emirates and the Guptas are in Dubai and we are liaising with the Justice Department of the UAE, which has to interact with the Emirates of Dubai.

“They have a complex system which our authorities seem not to appreciate and even less understand. It’s a sensitive issue internally for them as well. So overall bilateral relations will not be impacted. They are keen on our partnership in their very robust drive into Africa and we are part of the larger picture for them.” DM168

This story first appeared in our weekly Daily Maverick 168 newspaper, which is available countrywide for R25.