EDITORIAL | When, or if, the Guptas are extradited, SA’s case must be airtight

Three years of diplomatic dexterity and doggedness appear to have paid off for SA law enforcement bosses.

The arrest of Rajesh and Atul Gupta in Dubai has been widely welcomed by South Africans who are frustrated by the excruciatingly slow progress in bringing the perpetrators of state capture to justice.

But the real work in getting the Guptas back to SA and into the dock is far from over. SA must convince UAE authorities that it has a strong case against the brothers before the country will agree to release them to face trial in SA. That could take months.

According to UAE extradition processes suspects must, within 48 hours of their arrest, be handed over to its public prosecution department, which will then investigate to determine if extradition is warranted. 

In situations where the UAE has a treaty with the requesting country, as it does with SA, the suspects may be held in custody for up to 60 days. So don’t start making your welcome home banners and heading for OR Tambo just yet.

Even when treaties are in place, extraditions can by nature be slow, messy procedures, mired by obstinate bureaucracy and official red tape.

The Guptas left SA in 2018 and efforts to bring them back began in earnest in December 2019, when justice minister Ronald Lamola and then service and administration minister Senzo Mchunu led a high-powered delegation to the UAE in a bid to convince them to repatriate the brothers, along with the money they allegedly looted. 

South Africans will be hoping that the Gupta extradition process is quick and concise. But when, or if, the brothers are brought back to SA, the NPA will need to make its case stick.

The delegation included NPA head Shamila Batohi, then head of the NPA’s investigative directorate Hermione Cronje, SIU head Andy Mothibi and Robert McBride in his capacity as acting head of the ethics unit in Mchunu’s department, among others.

Six months later, Lamola announced an extradition treaty with the UAE had been finalised and would come into effect on July 10 2021, paving the way for the Gupta brothers to face corruption charges in SA.

But Lamola admitted that despite SA and the UAE having ratified the convention, the government had not “experienced the level of appreciation and cooperation which is required in terms of the convention in the fight against corruption”.

He said that though SA was not able to get the assistance required through the UN convention, the ratification of the two treaties of extradition and mutual legal assistance “symbolises a change of course and cooperation”.

Lamola’s announcement came a week after Cronje said the NPA was applying to Interpol to help with the execution of arrest warrants for the Guptas and their cronies.

In March, Interpol issued a red notice for Atul and Rajesh. A red notice is a request to law enforcement worldwide to locate and provisionally arrest a person pending extradition. This will no doubt have further spurred the UAE authorities into action.

SA doesn’t have a great track record when it comes to extraditions.

In 2016 the Hawks confirmed that an Interpol red notice had been issued for personal injury lawyer Ronald Bobroff, and that extradition proceedings had begun. Yet nothing has come of it.

For more than 40 years, Bobroff carved a name for himself as a crusader for those injured in car accidents and by medical negligence. He and his son Darren vowed to take on “the crooked, corrupt and creepy”. But when their gig finally caught up with them and they were about to be charged with fraud and money-laundering involving hundreds of millions of rand, they fled to Australia, where Bobroff continues to practise law as an expert medico legal litigation consultant, according to his LinkedIn profile.

Before that there was Barry Tannenbaum, the lawyer at the centre of SA’s biggest Ponzi scandal, worth R12.5bn. When the scheme crashed in 2009, he hotfooted it — also to Australia. Though an arrest warrant was issued for him, SA authorities have never lodged a formal extradition request.

However, SA did manage to apply for extradition in the case of self-proclaimed prophet Shepherd Bushiri and his wife Mary, who snuck off back to their homeland Malawi in 2020, just days after the Pretoria central magistrate’s court granted them each R200,000 bail.

They were facing fraud and money laundering charges to the value of R102m. But the extradition is not exactly speeding along, and some believe the couple will never return to SA to face justice.

Meanwhile, the extradition hearing for former Eskom contractor Michael Lomas, who is implicated in a R740m corruption scandal involving the construction of Kusile power station, is limping along in London’s Westminster magistrate's court. 

The latest reported delay was due to an apparent medical condition that has a bearing on his mental health. Lomas is a former director of Tubular Construction.

But there has been some success.

Just last week, News24 reported that SA crypto developer Riccardo Spagni, who was arrested in the US last year at the request of SA authorities, is set to return to SA to face fraud charges after he waived his right to an extradition hearing. Spagni is a former lead maintainer for privacy-focused cryptocurrency Monera and is accused of defrauding a Cape Town company of R1.4m by submitting falsified and inflated technology invoices. He has denied the charges.

But let’s not forget the flip side of the coin. SA itself is home to several high profile criminal suspects whose countries want them back to face the music.

Botswana this week indicated it would consider applying for extradition for its former president Ian Khama, after he failed to appear in court. Khama, who is in self-imposed exile in SA, is charged with unlawful possession of a firearm and receiving stolen property, among other charges.

Then there is former Mozambique finance minister Manuel Chang, who has been held in SA since 2018. This week the Constitutional Court dismissed the Mozambique government’s application for leave to appeal a ruling that Chang be extradited to the US to face charges of corruption, fraud, and money laundering.

South Africans will be hoping that the Gupta extradition process is quick and concise.

But when, or if, the brothers are brought back to SA, the NPA will need to make its case stick. It is therefore vital that it presents a thorough, airtight case against the brothers.

Who can forget the agony of watching murder-accused Shrien Dewani walk free — after SA had pushed for years to get him to SA to face charges of murdering his wife Anni during their honeymoon in Cape Town in 2010? He was acquitted in 2014 due to insufficient evidence.

We cannot have a repeat of that with the Guptas. There is way too much at stake.