Securing their extradition is not a walk in the park
The fact that there are no notable convictions yet in any state capture cases is likely to make any attempt to get the Gupta brothers extradited very difficult.
This will probably be the brothers Atul and Rajesh Gupta’s first defence when the extradition request is brought before the court in Dubai, forensic auditor André Prakke says.
Prakke is involved in attempts to get the lawyers Ronald and Darren Bobroff extradited to South Africa. The Bobroffs fled to Australia in 2016 when the Hawks wanted to arrest them for alleged fraud with the Road Accident Fund. Six years later, they have not yet been extradited.
Two advocates from Johannesburg, Mike Hellens, SC and Dawie Joubert SC, are reportedly already in Dubai to assist the two brothers in the complicated legal process that will kick off within weeks. According to Prakke, Hellens also assisted Shepherd Bushiri in Malawi in his court battle not to be extradited to South Africa. Bushiri fled to Malawi in 2020 before he and his wife, Mary, could be arrested on several charges of alleged fraud and money laundering in South Africa. The couple has still not been extradited.
Prakke says it is not known whether a complete charge sheet has been drawn up against the Gupta brothers. The first hurdle will be to persuade the prosecuting authority of the United Arab Emirates (UAE) to issue a warrant against the Guptas, says Advocate JJ du Toit, former deputy director of public prosecutions in the Gauteng and head of the extradition office in Johannesburg.
Du Toit says:The two brothers were arrested by Interpol simply because of their red classification. Now South Africa must file an application for provisional extradition, together with copies of the warrants against the Guptas and the full reasons why a prima facie case against them is being investigated. Everything must also be translated into Arabic and the department of international relations and co-operation must attach the necessary diplomatic notes.
The principle of double criminality applied, which means that the Guptas’ local offences must also be regarded as a crime in the UAE. The Estina dairy farm charges of corruption and money laundering are offences in both the UAE and in South Africa.
Du Toit says what is important is that South Africa must now specify the charges against the two. “These can be supplemented during the course of the extradition process with more cases being investigated against the brothers. When they have been extradited, however, no further charges may be added against them, because that would be against the provisions of the extradition agreement.”
Business Day reported earlier this week that Advocate Anton Katz, SC, of Cape Town, had been asked by the state to help with the Guptas’ extradition. He has extensive experience in extradition.
Du Toit says there is now some time to prepare a proper legal team consisting of more than one lawyer.It may be a good idea to contract some of the private lawyers who have already been involved with evidence before the Zondo commission to handle the criminal case as well. There were brilliant young lawyers such as Kate Hofmeyr who can now be brought in.
Prakke is concerned because the Guptas have only been involved in the bigger picture of state capture, but have not been listed as co-accused in any of the cases so far.
He says they may be the masterminds behind the whole thing, but their direct involvement in every case is still being proven and how the money has moved through a myriad of bank accounts. He believes extradition and cases against the brothers will not be settled within weeks, but will probably take years.
The departments of justice and international relations and co-operation as well as the National Prosecuting Authority did not respond to enquiries for more clarity.