Durban - The South African government and the Department of Justice and Correctional Services will have to up their game and provide the United Arab Emirates (UAE) with compelling evidence linking Atul and Rajesh Gupta to crimes in South Africa for them to be extradited.
This is the view of Professor André Thomashausen, professor emeritus of International Law at the University of South Africa, who said South Africa had to fulfil the requirements of the UAE’s extradition requirements, because as long as it did not fulfil them, the Guptas would not be returned to South Africa.
Seven months since their arrest in Dubai, Atul and Rajesh have still not been extradited despite a treaty between South Africa the UAE.
Thomashausen said: “The requirements of extradition legislation are more or less the same as in any other countries. There must be a very clear and precise indication of the crimes that the Guptas are supposed to have committed.” He said the South African government had simply said the Guptas were guilty by association.
The Department of Justice called it Common Purpose because they were close with managers of certain companies that had been guilty. “Common Purpose is an old apartheid era construct which was used in the apartheid days where if you are standing on the road next to a demonstration the police could arrest you because you were standing next to a demonstration and you weren’t signalling that you disagree with the people doing a demonstration,” Thomashausen said.
He said the problem with Lamola’s department was that they did not do their jobs and were lazy instead of showing what the Guptas had actually done. “They simply said the Guptas were associated with such-and-such a company and therefore we want them. The UAE has a problem with this and they are waiting for South Africa to furnish all details and explain a little better what the Guptas are actually charged with, and that is the delay,” said Thomashausen.
He added that sooner or later the UAE could release the Guptas because there was not enough evidence behind South Africa’s claims of the Guptas being criminals.
Thomashausen cited former Mozambican finance minister Manuel Chang, arrested in South Africa in 2018 over the $2 billion (R34bn) “hidden debts” scandal, who has still not been extradited to the US despite that country’s request to have him sent there to face trial. “If South Africa has no hurry in extraditing people, the other countries will also not be very motivated.
If South Africa doesn’t help other countries, why should other countries help South Africa?” Thomashausen said. In November, Lamola said the matter of the Guptas’ extradition was being heard in UAE courts and that there was good progress in the matter due to the “good mutual relations” between South Africa and the Middle East nation.
He said they were in constant communication with their UAE counterparts and were hopeful that the UAE courts would “take the correct decision” as his department had complied with the treaty South Africa had with the UAE.
This week, Lamola again expressed confidence that the Guptas would soon be extradited. Responding to questions sent to the Department of Justice this week about the challenges faced by the South African government in extraditing the Guptas, department spokesperson Chrispin Phiri said extraditions by their nature were protracted.
“As you may know, extraditions are not a process of picking up someone from a foreign country. It is far more complicated than that. “Extradition is the formal process whereby a state requests from the requested state the return of a person accused or convicted of a crime to stand trial or serve a sentence in the requesting state.
“This request must meet legal requirements which are set out in the bilateral treaty and the domestic laws of a particular country,” Phiri said. He said that in many jurisdictions, the right to freedom and fairness for individuals was judicially guaranteed and this meant that an individual’s freedom could only be curtailed by a fair, judicial process.
“This in turn creates a process where a requesting state relies on its counterpart in the state where the fugitives are requested to place an extradition request before a judicial officer to determine whether the fugitive is extraditable,” Phiri said.
He added that they continued to have “good levels of co-operation with our UAE counterparts” and that they were currently awaiting feedback on whether their request to have the Guptas extradited to South Africa was ready to receive judicial consideration. “The level of co-operation from the UAE authorities is encouraging as we continue to receive feedback on various aspects of our request. Due to the quasi-judicial nature of extraditions, it is not possible to set a period for extradition requests,” Phiri said.
SUNDAY TRIBUNE