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

Port Vila, the capital of Vanuatu. (Photo: Flickr)

By Ferial Haffajee

13 Apr 2023

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.

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 where the Guptas have acquired citizenship. (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

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