The news of the arrest of Rajesh and Atul Gupta in Dubai, United Arab Emirates (UAE) has created a great buzz in South Africa. Calls for their extradition and presentation before the South African criminal justice system are heard from all over.
This will be the first high-profile extradition case between the UAE and South Africa. It may not be on the scale of extraditions involving organised or violent criminals, such as that of Joaquín Guzmán Loera (El Chapo).
But the scale of State Capture and the individuals alleged to have been part of it, including putting it on the doorstep of the ruling ANC, will make the Gupta extradition join the ranks of high-profile white-collar extradition cases including those of Meng Wanzhou, the CFO of Huawei facing extradition from Canada on charges of bank fraud and Iranian sanctions violations and Dmytro Firtash, a Ukrainian oligarch facing extradition from Austria on charges of bribery and corruption.
In the UAE, the extradition of a fugitive criminal is governed under the Law on Mutual Judicial Assistance in Criminal Matters (Federal Law No 39 of 2006). This is the same Federal Law whose provisions seem to have greatly influenced the UAE-South Africa Extradition Treaty of 2018, which was ratified on 9 June 2021.
Having considered the provisions of both the treaty and the UAE Federal Law of 2006, I would advise anyone not to uncork the Champagne bottle hoping that the Gupta brothers will be on their way to South Africa to face their State Capture crimes any time soon.
Inasmuch as the channel to lay hands on fugitive criminals through extradition and mutual legal assistance arrangements is based on mutual respect between nations (comity), the UAE is not going to just hand over the Guptas to South Africa.
It must be realised that there are still UAE laws that must be complied with before the Guptas can be surrendered to the South African criminal justice process. Let alone the fact that the UAE court system does not treat the Guptas as suspected criminals within the system, but rather as persons who are the subject of an extradition/delivery request by South Africa.
Getting the Guptas to South Africa is going to be a tedious and complex process even though there is an extradition treaty. The existence of an extradition treaty should not be considered as a foregone conclusion that the Guptas will be spending this Christmas in South African prisons. To begin with, the UAE has a judicial mechanism made up of stages that the Guptas can have recourse to as part of challenging their extradition.
First, they may look to the local Interpol authorities in the UAE. But this may not be an option for them, given the fact that it is Interpol that issued a Red Notice on them as fugitives wanted for committing economic crimes.
The next port of call for assistance in avoiding delivery to South Africa may be the Court of Appeal, the Cassation Court, or the Ministry of Justice and the Ministry of Interior in the UAE.
The reasons that could be provided by the Guptas in terms of the Federal Law of 2006, which are also covered under Article 4 of the Extradition Treaty with South Africa, may include that:
- If extradited, they may face inhumane treatment; or
- The crime for which they have been arrested is political or politically motivated.
The latter argument is a possibility as the Zondo Commission has been accused of being a political witch-hunt by those opposed to it from the first day of its inception.
The Guptas may prolong the wait for their day in South African courts by invoking legal obstacles that can be used under Article 9 of the UAE Federal Law, which must also be complied with.
Several articles of this law must be complied with to enable a successful recourse to the UAE-South Africa Extradition Treaty. I do not doubt that the three conditions set under Article 7 of Federal Law will be met by the South African authorities. Corruption constitutes a crime and a breach of criminal law both in the UAE and South Africa, thus the first condition of Article 7 (1) and (2) of the Federal Law will be met.
The condition of equal treatment required by the UAE law should be easy to meet. The third condition relates to the expected penalties, which must be a minimum of a one-year prison sentence. The courts in the UAE can reject the extradition request if the maximum prison sentence for this crime in the UAE is under one year or the penalty that the Guptas face is financial or a fine only.
The South African criminal justice system is thus, in my view, incentivised to seek imprisonment as a penalty, should the prosecution be a success. In any event, the law that will be critical in the prosecution of State Capture crimes, the Prevention and Combating of Corrupt Activities Act 12 of 2004, makes provision for longer terms of imprisonment, including life imprisonment.
The point is that although the arrest of the Guptas in the UAE is an important milestone for the National Prosecuting Authority (NPA), there is not much to celebrate yet.
The law, including the UAE national law, must take its course. Besides, the Guptas cannot be kept in custody in the UAE for more than 60 days. The UAE Public Prosecution service may decide to release them in exchange for a security deposit or a personal guarantee made by them or their guarantor. For those hoping that they are imprisoned until delivery to South Africa, there is the likely possibility that they are kept in custody for the minimum 15-day period, which can be extended to 60 days under the treaty arrangement.
So far, the NPA has not been too open about the investigation status of the case against the Guptas. This is important in the extradition saga because under the UAE’s national laws, extradition transfer procedures require certain documentation from the requesting country for the fugitives to be delivered back to it. One of the documents is a submission in Arabic to the Public Prosecution service of notarised/authenticated copies of the files related to the investigation.
So, we must hold our horses. There are still many political, legal and diplomatic discussions that are to take place between the UAE and South Africa regarding the delivery of the Guptas to Pretoria. Authorities central to the sought extradition — the director-general of the Department of Justice and Constitutional Development in the case of South Africa, and the Ministry of Justice of the United Arab Emirates — are going to have their hands full.
This opinion is not intended to mean that getting the Guptas to South Africa cannot be done. A Dubai court in 2018 approved the extradition to India of Christian Michel, a Briton accused of involvement in an Indian corruption scandal dating back to 2013. Corruption is one of the offences the UAE authorities frown upon, and the Guptas must be put on notice as they try to fight against their extradition to South Africa to face corruption charges.
Noteworthy also, and stacking the odds against the Guptas, is that both the UAE and South Africa are part of the United Nations Convention against Corruption, which was passed by the UN General Assembly in 2003.
In the Preamble to the UN Convention, parties that included South Africa and the UAE expressed the conviction that “corruption is no longer a local matter but a transnational phenomenon that affects all societies and economies, making international cooperation to prevent and control it essential”. DM