Guptas’ new get out of jail card
Wanted for state capture, the brothers will probably never face any charges in this country because Dubai ‘has little interest’ in extraditing them and their cronies to South Africa. They are effectively free, a legal expert says.
‘They are not here to face the charges of state capture and possibly never will be.’
The extradition case against the Gupta brothers, Ajay, Atul and Rajesh, wanted in South Africa to stand trial on charges related to state capture, might be a waste of time, according to a legal expert, because there is no incentive for the United Arab Emirates to hand them over.
The Organisation Undoing Tax Abuse (Outa) has laid charges of treason, racketeering, extortion, fraud and forgery against the Gupta brothers and Duduzane Zuma in connection with allegations of state capture.
Zwelinzima Vavi, general secretary of the SA Federation of Trade Unions (Saftu), said the extradition of the Guptas, who are apparently living in the United Arab Emirates (UAE), may have been intentionally stalled, because the UAE does not allow anyone to be extradited five years after the alleged crimes.
“In August, it will be the end of that five years. After that, the Guptas are free,” Vavi tweeted.
According to legal expert Richard Chemaly, it was unlikely the UAE would hand over the Guptas to be prosecuted because it was not in their interest.
“Legally, SA has an extradition treaty with the UAE, signed in 2018 and ratified by SA later that year – but the UAE has yet to ratify it into law,” Chemaly said.
“The UAE is clearly reluctant to ratify. I assume this is due to little political interest in allying with
South Africa and even less incentive to do so. There is a strong precedent set in the UAE relating to the five-year limitation.”
Chemaly said legally and politically, pursuing the extradition was a waste of time and SA should rather focus on more friendly nations and Interpol for assistance, because the UAE had a history for refusing extraditions.
“The UK wasn’t even able to get alleged tax evaders back from the UAE to stand trial in 2016, because the crimes were allegedly committed in 2008.”
This was a reference to the Dubai Cassation Court – the country’s highest court – rejecting an extradition request for three British brothers who allegedly conspired to launder money and evade taxes of nearly R2 billion.
“However, many core alleged crimes occurred more recently – but this delay seems set to continue because extradition agreements are based on international law, which is a very flimsy form of law based on agreements with limited accountability,” said Chemaly.
He said the Guptas would not exactly get off scot-free because South Africa does not have any form of limitations when it comes to time between a crime and when you may be convicted. A case would, therefore, still be open.
“The case will remain open on this side. It merely means they are not here to face the case and possibly never will be, so effectively free but never free to visit us and/or another country willing to help us out,” Chemaly said.
According to Justice Minister Richard Lamola’s address to the United Nations Convention against Corruption in Abu Dhabi in December, SA was being frustrated by the UAE for delaying the extradition process against the Guptas.
He said SA’s legal framework on international cooperation in criminal cases enabled it to provide the necessary assistance to other states on the basis of reciprocity.
The department of justice referred questions to the National Prosecution Authority, which did not respond by the time of going to press.
The UAE Embassy in Pretoria also failed to respond to questions.
UAE has little political interest in allying with SA