By Carl ‘Mpangazitha’ Niehaus
The latest shocking revelations by the Justice and Correctional Services Minister, Ronald Lamola, that the United Emirates Arabs (UAE) has rejected South Africa’s request to have the Gupta brothers extradited to South Africa to face charges of money laundering and fraud should come as no surprise.
A flustered and incoherent Lamola was incandescent with rage as he fulminated against what he claimed was an unjustified and erroneous decision by the UAE court. Lamola stated: “We learnt with shock and dismay that the extradition have been concluded in the Dubai courts on the 13th of February 2023, and our extradition request was unsuccessful.
The court found that on the charge of money laundering, the crime in question is alleged to have been committed in the United Arab Emirates and in South Africa. In terms of the federal laws of the United Arab Emirates, an extradition can be denied because the United Arab Emirates has the jurisdiction to prosecute the crime.”
Lamola further continued to misrepresent the substantive ruling of the Dubai court as follows: “On the charge of fraud, the court found that the arrest warrant relating to this charge was cancelled. The reasons for denying our request are of a technical nature.”
He claimed there was no reason to dismiss the extradition request. Lamola said they intend to appeal the decision as they believe that the matter was wrongly handled by the Arab nation’s courts.
“We still intend to engage with our counterparts in the UAE, as requested in March, to ensure the decision of the court is properly appealed as well devise other mechanisms to deal with the matter,” he said.
Lamola’s hastily convened impromptu press conference exposes the gross incompetence of the Ramaphosa regime in several ways and raises the following pertinent questions.
Lamola’s claim that he learned with “shock and dismay” the Dubai court verdict almost two months after it was rendered beggars belief. Did the Justice Department, which had full knowledge of the impending court hearing, have counsel on the ground in Dubai acting properly in vigorously advancing South Africa’s case, and if not, what is the explanation?
We would expect a serious-minded government to have counsel on the ground when South Africa makes an unprecedented extradition request on matters of national importance it claims involved state capture. There is no evidence that any South African government-appointed counsel complied with their obligations to the extradition judge, and there is absolute silence on the extent of their participation, if any.
The fact that the Minister is left fulminating and incoherently arguing the merits of the case at a press conference instead of his duly appointed counsel in the matter exposes Lamola’s incompetence and attempt to cover-up the fiasco. But it gets worse - without the participation of counsel on the ground, there was no responsible advocate in court to assure the Dubai court that South Africa has adopted policies and procedures that promote both fairness and efficiencies in extradition proceedings and that the Guptas would indeed receive a fair trial in our country. No right-thinking judge would give credence to Lamola’s out-of-court hot-air speeches instead of relying on properly adduced evidence as strictly required by the law.
Lamola further purposely misrepresents the substantive law issues involved in the Guptas' extradition. The much-hyped accusations against the Guptas were based on the rhetoric that they were guilty of “state capture”. As one can imagine, this falls woefully short of the “Dual Criminality” standard required in extradition proceedings.
The principle of double criminality holds that an act is not extraditable unless it constitutes a crime in both the requesting (South Africa) and requested (UAE) countries.
South Africa will certainly learn a lesson that an overly expansive definition of criminal offences to cover political jargon such as “state capture” will be rejected by sober-minded judiciaries around the world.
As the crime of “state capture” is not recognised as punishable in foreign countries, it cannot satisfy the double criminality principle and hence, cannot be an extraditable offence. Even when South Africa disingenuously tries to characterise such offences as common law fraud or corruption, most astute jurists would see through that deception and toss out the cases.
That is exactly what happened in the Gupta case.
The extradition request from the South African authorities alleged charges of fraud.
The extradition treaty between South Africa and the UAE contains a statute of limitations clause.
That means that there could be no viable fraud case against the Guptas because, according to the terms of the treaty with the UAE, no extradition shall happen if a statute of limitation exists for the alleged crime under UAE law. Lamola is telling a flagrant and disgraceful lie when he claims that: “On the charge of fraud, the court found that the arrest warrant relating to this charge was cancelled. The reasons for denying our request are of a technical nature.”
Far from it. Article 20 of the UAE Criminal Procedures Law stipulates charges of fraud that are considered a misdemeanour expire five years after the incident is alleged to have occurred. The Estina dairy crimes allegedly occurred at least before the Gupta wedding in 2013 and more than five years before the UAE–South Africa extradition treaty was concluded in 2021.
Ironically, Lamola’s deliberate lying about the matter may give the Guptas more ammunition to argue that the criminal case is politically driven and has nothing to do with the alleged crimes. Lamola should be advised that the UAE will not allow extradition of a person if, under Article 9 of the Extradition Law: the crime charged is of a political nature. Terrorist crimes, war crimes, genocides are not considered as political crimes;
· The extradition is aimed at penalising or prosecuting a person for his religious, nationality or ethnic affiliations;
· There is time lapse or;
· He may be subjected to inhuman, degrading treatment or torture in the requesting country if he is extradited.
Lamola further chose to misunderstand the UAE court’s ruling on money laundering, the crime which was alleged to have been committed in the United Arab Emirates and in South Africa. In terms of the federal laws of the United Arab Emirates, an extradition can be denied because the United Arab Emirates itself has the jurisdiction to prosecute the crime.
Accordingly, it makes perfectly good sense to insist that the South African authorities must give UAE prosecutors all the evidence supporting their allegations of criminal money laundering to enable them to prosecute the Guptas in Dubai. Why is South Africa refusing such an eminently reasonable legal solution if the case is really about money-laundering, pure and simple?
According to Article 3 of the extradition treaty between UAE and South Africa, extradition will be granted in specified cases which include if the action is an offence in both countries punishable with imprisonment for a year or more, if the offence relates to taxation, exchange control, customs or similar revenue matters.
Further, under Article 15 of the said extradition treaty, the UAE is entitled to seize all property, articles or documents that are found in the territory of the UAE which is connected with the offence for which extradition is sought.
If the Guptas have stashed their loot in Dubai, why not utilise the vehicle provided by the Treaty to seize the proceeds of the crime in the UAE?
Minister Lamola’s incompetence in specific regard to the Gupta extradition was exposed in February 2023, just a few days before the UAE court decision, by Professor André Thomashausen, professor emeritus of International Law at the University of South Africa.
He 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.
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.
Most damning, 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. (My source is an extensive IOL/Sunday Tribune interview with Professor Thomashausen: https:// www.iol.co.za/sunday-tribune/news/compelling-evidence-needed-for-guptas-extraditionaf9f01ec-4f9b-411e-9b5b-d5cbd608b3c3).
We must, as a country, confront the sad reality that Ramaphosa has evaded responsibility and dodged accountability on the Phalaphala matter. It was certainly no coincidence that the issue of the Guptas' arrest and extradition request was announced within days of Arthur Fraser’s revelations about Rampahosa’s multi-million Dollars/Rands Phala Phala corruption.
It was used as a red herring and decoy to deflect attention away from the flagrant violations by Ramaphosa. There was no genuine Gupta extradition request based on considered legal processes. Instead, it was a well-orchestrated public spin-doctoring of the President’s corruption, and the Guptas were a convenient scapegoat and cover for Ramaphosa.
He has weaponised public institutions, including Parliament and criminal prosecution authorities, to ensure his survival and to ensure that only his political enemies are prosecuted.
It is foolish and naïve for us to believe that other countries will take seriously allegations emanating from the Zondo Commission report about the Guptas. Zondo did not have unbridled powers to ride roughshod over the rights of accused persons, including the Guptas.
In SIU v Nadasen 2002 (1) SA 605 (SCA) at (5), Harms JA observed that an SIU is “similar to a commission of enquiry”.
The Court stated: “(5) …It is as well to be reminded, … of the invasive nature of commissions, how they can easily make important inroads upon basic rights of individuals and that it is important that an exercise of powers by a non-judicial tribunal should be strictly in accordance with the statutory or other authority whereby they are created. … A Tribunal under the Act, like a commission, has to stay within the boundaries set by the Act and its founding proclamation; it has no inherent jurisdiction and, since it trespasses on the field of the ordinary courts of the land, its jurisdiction should be interpreted strictly.”
What country would take Zondo’s Commission findings seriously when he leaned on his Constitutional Court colleagues to find former President Zuma guilty of a crime without trial and to sentence him to an unwarranted prison sentence?
Could we argue with a straight face that persons associated with President Zuma are not subjected to political persecution and that the Guptas will receive a fair trial?
*Ambassador Carl ‘Mpangazitha’ Niehaus is the National Chairperson of the Working Board of the African Radical Economic Transformation Alliance (ARETA).