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Guptas’ ‘witch-hunt defence’ is tricky

Gupta brothers Rajesh and Atul are expected to use the “political witchhunt” theory as part of their defence strategy in their fight against extradition from the United Arab Emirates.

File image: Atul Gupta. IOL.

Published Jun 14, 2022


Durban - Gupta brothers Rajesh and Atul are expected to use the “political witchhunt” theory as part of their defence strategy in their fight against extradition from the United Arab Emirates.

This as the National Prosecuting Authority (NPA) and the Department of Justice have appointed one of the country’s leading extradition lawyers, Anton Katz SC, to assist to convince the UAE that the Guptas should return to South Africa and appear before the courts.

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Katz yesterday said he was not in a position to talk to the press, but Department of Justice spokesperson Chrispin Phiri confirmed that Katz and two other advocates, Kessler Perumalsamy and Eshed Cohen, would at some stage travel to the UAE to start extradition proceedings against the Gupta brothers.

Rajesh and Atul were arrested in Dubai last week after the International Criminal Police Organisation (Interpol) last year issued a Red Notice alert for members of the family in connection with money laundering charges.

Dubai-based newspapers have reported that the brothers deny any wrongdoing and say they are the victims of a political witch-hunt in South Africa.

Immigration law expert Professor Andre Thomashausen said their strategy was not surprising as the extradition treaty between the UAE and South Africa specifically stated that extradition could not be granted on political grounds.

“The evidence leader in the UAE will have to show that they are wanted in South Africa on circumstances that constitute normal criminal offences.

“The UAE will hear the matter in an inquisitorial court proceeding, as opposed to accusatorial – which means a judge and not a jury will make the final decision. A judge has more liberty and freedom to determine the credibility of the evidence,” Thomashausen said.

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He said he did not think that the UAE would tarnish its good international relationship for the Guptas.

“The UAE might rule that the Guptas are foreign residents who did not fully disclose the criminal charges they are facing. Their whole residential status might be questioned.

“If the NPA has done its homework, if there is a clear and conclusive charge sheet, then I don’t see how extradition can be refused,” he said.

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Thomashausen said South Africa’s judicial system was in good standing and it would be difficult to prove that this was a political witch-hunt.

He said it was crucial that the grounds for extradition be based on strong and clear evidence, and not speculation.

Gary Eisenberg, an immigration attorney at Eisenberg and Associates, said the political motivation defence would complicate the process as the treaty between the two countries does not make provision for extradition for political reasons.

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“If the charges arise in South Africa from a political foundation, then this could well be an effective defence in the UAE. The treaty is pretty explicit and international law is explicit.

“This could complicate the process, although one (would have) to read the minds of the prosecutor in Dubai and determine what kind of pressure the UAE government is under from their international partners. It could be a political decision at the end of the day to have them surrendered to South Africa,” Eisenberg said.

The Zondo Commission report into state capture alleges that Nulane Investments 204 was one of the Gupta family’s prime money-laundering initiatives.

The Guptas were arrested in Dubai last weekend in accordance with an Interpol Red Notice for fraud and corruption related to Nulane, which was solely owned by Gupta-linked businessman and former Transnet board member Iqbal Sharma.

The matter pertains to procurement fraud involving R24.9 million paid between November 2011 and April 2012 by the Free State Department of Agriculture to Nulane.

The State alleges the funds were diverted to Islandsite Investments 180 ltd, which was owned by the Guptas. Nulane then subcontracted the work to Deloitte, paying them R1.5m.

The balance of the R25m payment allegedly made its way through an intricate money-laundering network into the bank accounts of several Gupta companies, the State alleges.