Gupta brothers extradition could take years

NT The Gupta brothers were arrested, confirmed the Department of Justice and Correctional Services.

NT The Gupta brothers were arrested, confirmed the Department of Justice and Correctional Services.

Published Jun 12, 2022


Durban - The extradition of the controversial Gupta brothers from the United Arab Emirates (UAE) to South Africa to face justice for their alleged role in the state capture could be a convoluted and drawn-out process, immigration experts have cautioned.

Rajesh and Atul Gupta were held by UAE law enforcement authorities in the Middle East country last week following a red notice request by South Africa. This week, Minister in the Presidency Mondli Gungubele said that there were no guarantees that the Gupta brothers would be extradited to South Africa to face trial on corruption and state capture allegations levelled against them.

Some of South Africa’s top immigration experts have also echoed Gungubele’s warning, saying that the process to bring the Guptas back to the country would be time consuming.

Professor André Thomashausen, international law emeritus at the University of South Africa, said it was not possible to estimate the time it would take for the country’s extradition request to be resolved in the UAE. Thomashausen cited a recent case of an American extradition request to South Africa in the matter of Manuel Chang. He said three-and-a-half years had passed and South Africa had still not resolved the matter.

Thomashausen said according to the 2021 Extradition Treaty with the UAE, the request with all accompanying evidence and documentation must be translated into Arabic with a translator’s certification acceptable in the UAE. “This alone could take considerable time, presuming that all the details and evidence of the charges against the arrested Gupta brothers are ready and complete.” Thomashausen criticised the snail’s pace of the National Prosecuting Authority (NPA), saying if it had acted quickly, the authority would have been able to prosecute the Guptas. “The accused would have been arrested and prevented from leaving South Africa.

The recent judicial rulings against the NPA in asset forfeiture cases against the Guptas, seem to indicate that the NPA has for a long time not been able to complete its case against them,” said Thomashausen. He added that the UAE would not allow comparatively small and insignificant immigrant investors such as the Guptas to tarnish their good standing and reputation in global financial transactions.

“If the NPA can actually present evidence of financial crimes committed by the Guptas, they will most certainly be extradited in the nearest possible future,” he said. Rajesh and Atul Gupta have been charged for multimillion-rand fraud and money laundering and fled the country. Earlier this year, Interpol, an organisation that facilitates worldwide police co-operation and crime control, issued a red alert for the brothers.

On Monday, the department issued a statement confirming the arrest of the two brothers in the UAE. Speaking to the Sunday Tribune, Chrispin Phiri, spokesperson for the Department of Justice and Correctional Services labelled the arrests as positive progress for the department in making sure that the extradition processes took place.

“There is no exact time frame as to when the suspects are going to be extradited but the department is in progress with the UAE authorities, with whom we’ve worked quite well. The next step is to make sure that the NPA prepares that extradition documentation as soon as possible for the central authority to send it across the UAE counterparts,” said Phiri.

Gary Eisenberg, immigration attorney at Eisenberg and Associates, said that South Africa had not yet made its request for the extradition of the Gupta brothers, and that UAE police had acted on an Interpol red notice request made by South Africa.

“The police have acted on a red notice alone which is very unusual, because a red notice is a flag which says these people are fugitives, apprehend them, find them. “But if the requesting country, like South Africa, which is party to this extradition treaty, has not yet filed an extradition request or a request for what’s called a provisional arrest then I don’t know on what basis they have been arrested,” Eisenberg said.

He added that assuming that the arrest was an unlawful arrest in terms of the UAE law, as it had been done in terms of UAE domestic law and had nothing to do with South Africa, this was one of the first things the Guptas would challenge, leading to possible further delays.

“Another question to ask is: are the charges in South Africa, on the basis of which the request for extradition forthcoming, political? If a UAE court believes that the charges are political in nature, that this is a political witchhunt, that is a basis for refusing the extradition. That gives you a taste of what we could possibly see,” Eisenberg said.

He added that there would be many other factors that the lawyers of the Gupta brothers would look at including whether the documents had been properly authenticated, totally compliant with the treaty, and if they are compliant with the extradition legislation in the UAE.