The questions South African authorities should be able to answer about the Guptas

10 Jun 2022

This week, Daily Maverick sent both the National Prosecuting Authority and the Department of Justice a list of critical questions relating to the arrests of Atul and Rajesh Gupta in Dubai and the forthcoming extradition process. We received no response, while other SA media outlets have been fobbed off with answers almost meaninglessly vague. Here’s why this is worrying.

The news that Atul and Rajesh Gupta were arrested in Dubai late last week has been hailed as a major step forward when it comes to accountability for State Capture crimes. But arrests are just the first step: what happens now, in terms of South Africa’s handling of the extradition process, will determine whether the brothers actually ever stand trial in a South African court.

Days since the news of the arrests broke, South African authorities have yet to host a press conference detailing the context and the way forward for the Guptas’ extradition. Journalists are being given extremely limited and vague information, essentially limited to “discussions are ongoing”.

The scant details that the National Prosecuting Authority (NPA) and the Department of Justice (DoJ) have been able to supply thus far on the Gupta situation seem increasingly difficult to blame entirely on the (undoubtedly tricky) diplomatic niceties underlying the affair. Instead, the information vacuum is beginning to create the impression that South African authorities have been caught on the back foot by the arrests and are now scrambling to play catch-up.

This would be worrying if true, given both the importance of the case and the amount of time the NPA has had to prepare.

https://www.dailymaverick.co.za/article/2022-06-10-the-shakesperean-tragedy-of-cyril-ramaphosa/

Daily Maverick sent the following list of questions to both the NPA and the DoJ this week and received no response. Here we outline why these queries are critical.

When did the NPA and/or the DoJ become aware of the Gupta arrests, and how?

When precisely were you contacted by the UAE authorities advising you that the Guptas were in that country? Was this before or after the arrests?

This information is important to establish because it would shed some light on whether the arrests were a surprising lucky strike by the United Arab Emirates (UAE), or if they were the result of a coordinated move by the UAE and South Africa working together.

Coordination is more likely to have ensured that South Africa was ready with the relevant paperwork to move the extradition application forward smoothly or, at the very least, to communicate details about it to the public.

A statement from the UAE Ministry of Justice on Tuesday seemed to suggest that the UAE deserved the lion’s share of the credit, claiming: “The UAE authorities took the lead in developing strong evidence on the case before making the arrests.”

A Twitter statement posted by the Dubai police read: “The force has also coordinated with the authorities in South Africa regarding the extradition file.”

This strongly suggests that South Africa did not have a team waiting in Dubai with said “extradition file”, as one might expect if forewarning was given of the arrests.

Where were the Guptas arrested? Were they attempting to travel in or out of the UAE or were they arrested while carrying on with their routine daily activities in Dubai?

In the consideration of the Guptas’ bail applications, it is vital to know whether the Guptas – labelled fugitives by South Africa and Interpol – have valid travel documents, where these are from, and if they habitually travel in and out of the UAE.

Atul Gupta’s litigation to try to obtain a new South African passport is ongoing, with him facing the problem of his old passport having seemingly run out of pages in advance of its expiry in 2025.

It is unclear what kind of support the Guptas might be still enjoying from authorities in their country of origin, India.

In 2018, Indian media outlets reported that the Gupta family had been awarded high-level “Z” category security from the government of their home province, Uttarakhand – reportedly becoming the first businesspeople ever granted this level of protection.

Has the NPA sent a team to Dubai? If so, when?

South African lawyers for the Guptas, including Mike Hellens, are known to have been in Dubai since at least Monday. The South African public needs to be reassured that the NPA’s team is in place there as well.

This week, eNCA revealed leaked email correspondence suggesting the UAE had asked South Africa for very basic information regarding the Guptas – photographs and fingerprints – as far back as March, but that this was only provided after an almost three-month delay, on 20 May.

To date, there has been no explanation for this delay, which sits uneasily alongside repeated complaints from both NPA head Shamila Batohi and Justice Minister Ronald Lamola over the past few years that it was the UAE which was dragging its feet on the Gupta matter.

An additional point of concern is that DM168 had engaged the NPA extensively during the week of 15 May for an article published on 21 May. As reported in that article, there were conflicting responses from the NPA and the Hawks at that time as to whether the Guptas’ whereabouts were known, and whether an extradition request had been submitted to the DoJ.

Did the NPA deliberately stall its response to the UAE request in order to buy time so they could get their ducks in a row in respect of the extradition application?

Have you engaged lawyers in the UAE to assist the UAE prosecution on SA’s behalf?

The NPA and the DoJ have released separate media statements, both referring to the fact that South African authorities were in talks with their counterparts in the UAE. It is believed to now be a week since the Gupta brothers were arrested. Yet, as things stand, South Africa still does not appear to know even if they are physically in custody – and when, or whether, there will be a formal bail application.

It might seem self-evident that if the Guptas have been arrested, they must be “behind bars” of some kind – but even this basic piece of information has not been confirmed. Daily Maverick attempts to seek clarity from Dubai-based journalists this week were unsuccessful.

One online guide to extradition from the UAE states that a suspect being sought for extradition is “not treated as a suspected criminal within the UAE court system”, but rather as “a person who is the subject of a delivery request to an outside country”.

Who is involved in the “ongoing discussions” between the UAE and South Africa? Are UAE prosecutors talking to the NPA, or is this case now in the hands of officials and diplomats?

Do you want the UAE to oppose bail when the Gupta brothers appear in court?

On what basis do you believe the UAE can convincingly put forward SA’s case in opposing bail? Alternatively, are you satisfied that you have sufficient evidence to demonstrate that the Guptas are fugitives from justice and that they continue to be a flight risk?

Opposing bail is surely a no-brainer for South African authorities – but the Guptas may well be considered “small fry” by the UAE, who will have to be convinced that they are a flight risk.

The brothers have known since at least mid-2021 that arrest warrants existed for them and that an Interpol Red Notice was being sought. Yet the Guptas seemingly never made a move to clarify their whereabouts and intentions, apparently preferring a protracted game of hide-and-seek.

Has South Africa made the UAE aware of the fact that the Guptas have business connections in both India and Uzbekistan to which they might easily slip away if given the chance? Prosecutors in the UAE must be alerted to this, or South Africa could well find itself back at square one.

Has SA communicated the country's intentions to seek the extradition of the Gupta brothers?

How many days does SA have to submit an application for extradition following this arrest?

You previously told Daily Maverick that you were bringing in private counsel to handle the Gupta extradition application. Please could you provide the names of at least some of the heavyweight members of this team.

In the wake of the Gupta arrests, the NPA has spoken of a team comprising internal and external experts on this case. This is simply too vague to inspire confidence. South Africa needs to know who has been entrusted with this vital task.

The best possible minds will be required to give South Africa its best possible shot at successful extradition. Dubai courts have previously dismissed extradition applications for reasons including a single missing document.

Time will not be on their side, as one of the requirements is for every scrap of extradition documentation to be translated into Arabic before it reaches the courts. This is not a trivial issue: the quality of Arabic translation was cited as one of the reasons behind the delays in the UAE ratifying its extradition treaty with South Africa.

It is also important to know when the NPA appointed the team, as it would demonstrate the institution’s readiness to deal with the unexpected arrest of the Gupta brothers.

So, were members of this crack team appointed at the point of the Gupta arrest, or well before?

Two Gupta wives are wanted in connection with the same criminal case for which Atul and Rajesh Gupta have now been arrested. Please state what the NPA intends to do about also bringing to book Arti and Chetali Gupta?

The two women are accused, along with their husbands, in the Nulane criminal case which is believed to form the basis of the Gupta brothers’ arrests. Daily Maverick previously asked the NPA whether it intended to challenge Interpol on its refusal to issue Red Notices against the two women.

If the NPA is not proceeding, does this mean it has decided to abandon the prosecution of the two Gupta wives – who may or may not even be in Dubai? Or will it now use this opportunity to also seek the extradition of the Gupta wives?

The DOJ and the NPA have suddenly both placed a great emphasis on “cooperation” from the UAE with regards to this week’s arrest, after many years of apparent tension on the issue.

a) Please could you indicate whether this arrest has brought about a total change in the nature and pace of this cooperation?

b) At the very least, please confirm whether the NPA has finally received all the relevant evidence – especially the outstanding bank records – that you previously requested from the UAE through mutual legal assistance over a number of years.

When the NPA abandoned its first attempt to prosecute the Estina dairy case in 2018, one of the reasons cited was that SA prosecutors were still awaiting documents from the UAE.

Years later, it emerged that an important element of those documents sought was bank records – which, until recently, were still holding up the NPA’s Estina prosecution efforts.

It is crucial to establish whether this new level of cooperation from the UAE means that the NPA has secured all those outstanding bank records and whether all suspects can finally be indicted in the Estina case. More importantly, will this newfound cooperation help SA’s efforts to trace and seize Gupta assets, including their mansion in Dubai’s Emirates Hills? DM

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