Durban - Prosecuting authorities from South Africa and the United Arab Emirates (UAE) are expected to meet next week to engage in the process to resubmit the extradition application for Rajesh and Atul Gupta. The brothers were set free earlier this year after a failed extradition attempt from the UAE.
Following the decision by the Dubai Court of Appeal, South African authorities’ prospect of success will largely be based on the resubmission of the extradition request with new and additional documentation.
Interpol placed Rajesh and Atul Gupta on its most-wanted list and the brothers were arrested by Dubai police in June last year – they are wanted in South Africa for allegedly looting billions of rand linked to state capture.
The UAE court turned down the extradition request as it found that on the money laundering charge, the crime in question is alleged to have been committed in the UAE and in South Africa, and federal laws of the UAE state that an extradition can be denied because that country has the jurisdiction to prosecute the crime. The court also found that the arrest warrant relating to the fraud charge had been cancelled.
Justice and Correctional Services Minister Ronald Lamola’s spokesperson, Chrispin Phiri, said plans to extradite the Gupta brothers were gaining momentum after Lamola met with his UAE counterpart, Abdullah Sultan Awad al-Nuaimi, in Abu Dhabi this week.
“There were productive, frank and robust discussions between the two ministers, and Lamola outlined his concerns about how the UAE had initially responded to the request. The minister stressed that it did not reflect the level of co-operation that was promised by the bilateral agreements that we have signed.” Phiri said both ministers undertook to ensure this was corrected and, moving forward, that the level of interaction between the prosecuting authorities would be more direct.
André Thomashausen, Professor Emeritus of International Law at Unisa, said the Dubai Court of Appeal had made a decision, and it was up to South African prosecuting authorities to again present a case.
“The court closed the original request, but this does not preclude South Africa from making a new request. The NPA cannot make this request based on what has already been decided, and the new case may include fresh arrest warrants or they may rely on information which they have not used yet.”
Tomashausen said it was possible to make repeated requests for extradition, but another country may find it abusive if this included aspects of the old requests that had already been denied.
“They may also find a way in the UAE to convince the court to review its own decision, in South Africa this is an application for a rescission of its judgment, based on new facts, a clerical error, an error in translation or a technical error which can be fixed.”
Thomashausen said the matter was complicated by reports that the Gupta brothers may no longer be in the UAE.
Another complication is that the State failed to make its case against the five accused in the R24.9-million money-laundering Gupta-linked Nulane Investment case that was dismissed by the Bloemfontein High Court.
The charges were dismissed after the five successfully applied for the charges to be dropped in terms of Section 174 of the Criminal Procedure Act, where an accused person can bring an application to be acquitted if the State fails to make its case.