Gigaba on the Guptas: 'This is why I didn't act' - but advocate says he is wrong

2018-10-17 18:54
Malusi Gigaba. (Photo by Gallo Images / Beeld / Felix Dlangamandla)

Malusi Gigaba. (Photo by Gallo Images / Beeld / Felix Dlangamandla)

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Home Affairs Minister Malusi Gigaba has reacted to a report earlier on Wednesday that he neglected to act on a legal opinion that advised him to challenge the Gupta family's citizenship status in court.

He argued that if he had done so, that might have had an impact on future efforts to extradite the family. However, another opinion by advocate Anton Katz, SC, states that citizenship has nothing to do with extradition.

News24 earlier reported that Gigaba had failed to act on a legal opinion by advocate Nazeer Cassim, SC, that was finalised in May this year and which said Gigaba "must institute proceedings in the High Court to review and set aside the minister's decision to have found exceptional circumstances in granting citizenship to members of the Gupta family".

After the report was published he tweeted: "Assume the date was 17 October 2020, @AdriaanBasson; @News24… What would be headline of your report on a Hawks/NPA submission to Parliament that their attempts to extradite the Guptas were being hampered by the fact that they are no longer San citizens/permanent residents??? (sic)" 

A subsequent tweet seemed to claim that home affairs' failure to implement the recommendations presented in the legal opinion was on request of law enforcement agencies. 

Katz, one of the country's premier experts on extradition law, also disagrees with Gigaba's interpretation of extradition legislation.

"The South African law of extradition does not distinguish in any way between South African citizens and foreigners. That applies to both outgoing requests for extradition and incoming requests.

EXCLUSIVE: How Gigaba ignored a legal opinion on challenging the Guptas' citizenship

"Many, if not most South African extradition requests to other countries relate to persons who are not South African citizens. A classic example is South Africa's request to the UK for Mr Shrien Dewani's surrender in extradition to SA to stand trial for murder in the (Western) Cape High Court. Mr Dewani was not a South African citizen. He was a foreign national who visited Cape Town for a couple of weeks," Katz told News24.

"And in most extradition treaties a provision exists that does not allow the requested state to avoid extraditing the sought person on account of his or her nationality."

Gigaba's statement also seems to be at odds with the terms of several South African extradition treaties. The extradition treaty between South Africa and India clearly states that "extradition shall not be refused on the ground of the nationality of the person sought".

extradtion treaty screenshot

The same wording is also used in the treaties between South Africa and Canada, Argentina and China, all of which are freely accessible on the website. 

Legal opinion: 'Minister was misled'

Cassim's legal opinion further stated: "I have no doubt that the information put before the minister by the Guptas to obtain citizenship was false and incorrect. No doubt, the minister was misled in believing that this family had large resources to inject into the South African economy and to benefit South Africa.

"In hindsight, they misappropriated and/or abused South African resources to propel their own cause, including obtaining South African citizenship. There is a largess of information readily available to support an application to court on this basis."

Gigaba's spokesperson Thabo Mokgola told News24 that the recommendation from counsel was no secret. 

"The legal opinion was indeed received on May 4, 2018. Hereafter the minister and DG [director general] consulted the relevant departments in the security cluster before embarking on any process in the matter as the issue of state capture is also under investigation by the criminal justice system."

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