by Jamie Jang[1]
In 2018, the economic and political stability of South Africa was upended when the Gupta brothers – Ajay, Atul, and Rajesh Gupta – and government officials were caught conspiring together.[2] The Gupta brothers, Indian-born South African businessmen, owned a tectonic empire across South Africa and wielded a great degree of political power.[3] After a government official testified against the Guptas, it was revealed that they had been involved in a longstanding scheme with members of the South African government, including President Jacob Zuma, to siphon millions of dollars from state-owned firms and the national treasury.[4] President Zuma was forced to resign and the Gupta brothers fled to Dubai, leaving their enterprises in South Africa bankrupt.[5] This scandal “offers a case study in a new, systematic form of graft known as ‘state capture.’ [. . .] It demonstrates how an entire country can fall to foreign influences without a single shot being fired”.[6]
The Gupta brothers have yet to face the charges brought against them for fraud and money laundering as they remain hidden in the United Arab Emirates.[7] For over three years, South Africa has requested full cooperation from the United Arab Emirates to extradite the Gupta brothers so they may be prosecuted in the country where they committed their crimes.[8]
UAE and S. Africa Ratify a New MLAT and Extradition Treaty
In response to the scandal, a new mutual legal assistance and extradition agreement between South Africa and the United Arab Emirates was ratified by both countries.[9] A statement issued by United Arab Emirates ambassador to South Africa, Mahash Alhameli reads, “These agreements have been and remain key to the UAE in promoting judicial and legal cooperation with South Africa and strengthening bilateral relations between law enforcement institutions and partners on both sides”.[10] While the treaty agreement was intended to mend the relationship between both countries, it appears that South Africa remains unsatisfied with the United Arab Emirates’ efforts.[11] National Director of Public Prosecutions (NDPP) Shamila Batohi states, “As I expressed to the ambassador yesterday, we will only accept that there is full cooperation when we receive the necessary information that we have been requesting now for over three years without success”.[12]
S. Africa Expresses Frustration over Inability to Obtain Custody of the Guptas and Request Interpol Red Notice
The NDPP is not the only one expressing frustration over the inability to obtain cooperation from the United Arab Emirates.[13] Civil society organizations, namely the Ahmed Kathrada Foundation and the Defend Our Democracy movement protested outside the United Arab Emirates embassy.[14] A statement from the Ahmed Kathrada Foundation reads, “The Guptas must be brought from the UAE, where they currently reside, to SA to account for the litany of allegations of state capture and corruption that they face”.[15]
The National Prosecuting Authority’s (NPA) Investigating Directorate (ID) head, Hermione Cronje has asked Interpol to circulate an international red notice to have the Gupta brothers deported back to South Africa.[16] The ID intends to try the Guptas for the R25 million spent on a feasibility study to determine the viability of the failed Estina dairy farm in South Africa.[17] The ID asserts that “the department paid Nulane the R25 million for the feasibility study. However, after receiving the money, Nulane appointed and paid Deloitte Consulting R1.5 million to conduct the study. The rest of the money was allegedly laundered through a series of accounts, ending in Gateway Limited, a Gupta-owned company in the UAE”.[18] After three years of unsuccessful efforts to extradite the Gupta brothers, help from Interpol for an international arrest warrant appears to be another mechanism for South Africa to try to gain custody of the Guptas. .
The case demonstrates how difficult it can be sometimes for prosecutors to obtain effective international enforcement cooperation.
[1] B.A., Rhodes College.
[2] “State Capture”: How the Gupta Brothers Hijacked South Africa Using Bribes Instead of Bullets. Vanity Fair. March, 2019.
[3] “State Capture”: How the Gupta Brothers Hijacked South Africa Using Bribes Instead of Bullets. Vanity Fair. March, 2019.
[4] “State Capture”: How the Gupta Brothers Hijacked South Africa Using Bribes Instead of Bullets. Vanity Fair. March, 2019.
[5] “State Capture”: How the Gupta Brothers Hijacked South Africa Using Bribes Instead of Bullets. Vanity Fair. March, 2019.
[6] “State Capture”: How the Gupta Brothers Hijacked South Africa Using Bribes Instead of Bullets. Vanity Fair. March, 2019.
[7] Masondo, Sipho. “NPA asks Interpol to help arrest, deport Guptas to SA”. June 3, 2021.
[8] Chabalala, Jeanette. “Gupta extradition: SA has been requesting information from UAE for over three years without success”. June 11, 2021.
[9] Chabalala, Jeanette. “Gupta extradition: UAE confirms signing agreement on mutual legal assistance”. June 9, 2021.
[10] Chabalala, Jeanette. “Gupta extradition: UAE confirms signing agreement on mutual legal assistance”. June 9, 2021.
[11] Chabalala, Jeanette. “Gupta extradition: SA has been requesting information from UAE for over three years without success”. June 11, 2021.
[12] Chabalala, Jeanette. “Gupta extradition: SA has been requesting information from UAE for over three years without success”. June 11, 2021.
[13] Chabalala, Jeanette. “Gupta extradition: SA has been requesting information from UAE for over three years without success”. June 11, 2021.
[14] Chabalala, Jeanette. “Gupta extradition: UAE confirms signing agreement on mutual legal assistance”. June 9, 2021.
[15] Chabalala, Jeanette. “Gupta extradition: UAE confirms signing agreement on mutual legal assistance”. June 9, 2021.
[16] Chabalala, Jeanette. “Gupta extradition: SA has been requesting information from UAE for over three years without success”. June 11, 2021.
[17] Chabalala, Jeanette. “Gupta extradition: UAE confirms signing agreement on mutual legal assistance”. June 9, 2021.
[18] Chabalala, Jeanette. “Gupta extradition: UAE confirms signing agreement on mutual legal assistance”. June 9, 2021.
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