NPA’s ID head Andrea Johnson on the failed Gupta extradition — ‘We were blindsided when we got the response’

9 May 2023

‘I don’t know if we’ll ever truly know where they were incarcerated and if they were incarcerated,’ Investigating Directorate head Andrea Johnson said in an e.tv interview aired on Tuesday.

The National Prosecuting Authority’s (NPA’s) team of investigators and prosecutors were never granted access to the Guptas in the UAE, despite requests to see where the brothers were allegedly being imprisoned, the NPA Investigating Directorate (ID) head, advocate Andrea Johnson, said in an interview with e.tv aired on Tuesday.

“They were not allowed access to the Guptas — not the investigation or the prosecution team were allowed to engage or to see where they were,” Johnson told e.tv’s Annika Larsen.

“We worked on good faith. The UAE said they were incarcerated, and since we have nothing to prove the opposite, that’s what we believe,” Johnson continued.

There is a chance that Gupta brothers Atul and Rajesh were never in custody in the UAE, quipped Larsen. The brothers were reportedly arrested in Dubai in June 2022, but South African authorities were never even provided with their mugshots as confirmation of their incarceration, as was previously revealed in responses from Justice Minister Ronald Lamola to parliamentary questions from the DA.

“Your guess is as good as mine, and that guess is as good as many around the world. And I don’t know if we’ll ever truly know where they were incarcerated and if they were incarcerated,” said Johnson.

Crucially, e.tv’s interview with Johnson was conducted on 24 April. This means it took place after the R24.9-million Nulane Investments case went bust in the Bloemfontein High Court on 21 April, and following news of the failed Gupta extradition earlier that month.

In the aftermath of these blows for the NPA’s ID, Larsen asked Johnson how she was feeling.

“I’m sure after recent happenings — which you’ll probably go into some detail on — people would like me to leave office. Where I am currently, I am really satisfied that I am in the right place doing the right thing,” she replied.

Johnson was appointed as the new head of the ID in March last year, following the resignation of her predecessor Hermione Cronje.

Read more in Daily Maverick: Ramaphosa appoints state prosecutor Andrea Johnson as new head of NPA Investigating Directorate

The UAE rejected South Africa’s bid to extradite Atul and Rajesh Gupta on 13 February this year. South African authorities were only notified of this development after receiving a note verbale (diplomatic communication) from the UAE on 6 April.

In response to a question from Larsen on whether mistakes were made by the NPA or the Department of Justice (DoJ) in regard to the failed request to extradite the brothers from the UAE, Johnson told her: “By the NPA? By the DoJ? No.”

The NPA knew that bringing the Guptas to face justice in South Africa was an important matter, so it also had an outside counsel on appointment assisting it in the matter, said Johnson.

‘We sent over a team’

“We realised it would actually be collegial to reach out to our UAE counterparts just to find out if we had dotted all the i’s and crossed all the t’s,” said Johnson. “So we sent over a team of investigators and prosecutors and an extradition expert that was in the NPA to the UAE, and they met with the judge — the judge who knows what is required in terms of their central authority.”

Johnson said the judge went through all of the NPA’s papers and indicated where the NPA needed to tweak things — “there were suggestions about maybe the amendment of a charge or two”.

After the team returned, the NPA made all the necessary amendments according to the recommendations and sent its papers off — through the DoJ as the central authority — all on time, she said. South Africa’s extradition request for the Guptas was submitted on 25 July 2022.

Johnson insisted that South African authorities tried to engage with the UAE, but the UAE was “not forthcoming” with information unless prompted.

“Where are we? What is going on? What do we need to do? Are our papers in order? We’ve done all of that. We haven’t heard from them about anything being amiss,” she said.

Then, “about a month or six weeks after the papers were filed”, the UAE asked her to authenticate the Arabic version. In response to this request, she stated she does not read, write or speak Arabic, but believed that the translation was correct.

“That was all they asked… There were no other engagements, and we tried to follow up to find out what was taking so long,” said Johnson.

“We were blindsided when we got the response.”

Arrest warrants

Johnson told Larsen she was aware that many people had concerns about the warrant submitted as part of SA’s extradition request.

In a press conference on 7 April, Justice Minister Lamola said two reasons were given for the Dubai court’s decision to deny the extradition request: the first was that the money laundering charge for which South Africa sought the Guptas’ extradition was also an offence in that country and that they could therefore be prosecuted in the UAE.

The second related to the validity of an arrest warrant submitted as part of South Africa’s extradition request. On Tuesday, Johnson clarified why the NPA had included cancelled warrants in the submission:

“When the team went to the UAE, the UAE indicated that they don’t deal with exchange control contraventions, and therefore advised that it would be best to remove that contravention.”

She explained that you cannot extradite someone for a crime that is not a crime in the non-requesting state.

“The initial warrants captured all of the charges — the exchange control regulations would have been one of them. So when we came back [from the UAE] and we made the necessary amendments — not just to the papers but to the indictment — we had to get new warrants of arrest leaving out the exchange control regulations.”

She said when the NPA sent the papers to the UAE central authority it sent the cancelled warrant, “to show that we had done what was requested, and that the new warrants in fact captured the charges as per the new indictment and as per the discussions”.

Nothing was flagged by the UAE central authority, said Johnson.

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

And the NPA was “taken aback” when the “excuse of a technicality over the warrants was raised”, she said. The NPA was waiting to get comprehensive feedback from the UAE on what that technicality meant, said Johnson, and was still awaiting this feedback as of 24 April.

When the note verbale was eventually received on 6 April, weeks after the extradition hearing had been concluded and without an explanation, it appeared to be in bad faith on the part of the UAE.

“Because we all know that these matters are time-sensitive, as does the UAE, and so timeously informing us would’ve been the best thing to do, and that wasn’t the case. And so one has to wonder why not,” said Johnson.

“The decision is really mind-boggling. But even more confounding to that issue is why were we not told in time.”

Nulane Investments trial

The NPA’s first State Capture trial came to an embarrassing end in the Bloemfontein High Court on 21 April, when the judge granted a discharge to seven of the accused in the R24.9-million Nulane Investments matter. While the NPA has since filed an application for leave to appeal against the judgment, the botched case served as another blow in South Africa’s mission to bring the Guptas back to South Africa.

The Nulane Investments case was among the matters already enrolled when Johnson came to the NPA’s ID. Commenting on acting Judge Nompumelelo Gusha’s ruling in the Nulane case, Johnson said she believed the judgment to be “rather scathing.”

“The judge was very open about all the misgivings she had about how the investigation was conducted.”

It was clear, Larsen said, that the Nulane case wasn’t well investigated. She asked Johnson at what point she could have withdrawn the case.

“Much of what came out, came out during the trial. There was nothing before that. That’s the god’s honest truth,” replied Johnson.

“When the prosecutors were preparing for court we did have engagements. They didn’t have any concerns, neither did I, because it was the same team that had been dealing with the matter from the time that my predecessor was there.”

Because of this, Johnson said she had no cause to reconsider the matter. “There wasn’t anything glaring… It’s only as the trial started that one realised, ‘Oops, we do have a challenge and we do have investigative shortcomings’.”

She said she “would’ve had no qualms” about considering withdrawing the case if she knew about “the alleged glaring shortcomings in the investigation”. DM

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South Africa

‘We sent over a team’

Arrest warrants

Nulane Investments trial