How Gigaba ignored a legal opinion on challenging the Guptas' citizenship
17 October 2018
A legal opinion handed to Home Affairs Minister Malusi Gigaba in May this year, by a top senior advocate and two juniors, strongly recommends he take court action to challenge the citizenship of members of the Gupta family.
But despite this advice, the minister has failed to institute any legal proceedings since receiving the opinion nearly six months ago.
The executive summary of the legal opinion, signed off by advocate Nazeer Cassim SC and two junior counsel, found that 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".
"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," says Cassim.
Both Cassim and the minister's office have confirmed the existence of the opinion.
Last week, the minister testified before the Portfolio Committee on Home Affairs' inquiry into the early naturalisation of four members of the Gupta family. He strongly denied that he had done anything wrong in granting them citizenship and also rebutted any suggestions that he had given any special assistance to the family.
Gigaba told the hearing that he "took it on good faith" that department officials had verified the Guptas' economic contribution to the country, but in fact "insufficient diligence" was done.
The minister has been at pains to challenge what he calls the "unfounded narrative" that he enabled state capture and acted on behalf of the Gupta family. He has however admitted to visiting their Saxonwold home on several occasions in the interests of 'social cohesion'.
Ajay Gupta's Permanent Residence Permit should also be revoked
Advocate Cassim and his colleagues reached the conclusion that Ajay Gupta was a prohibited person and undesirable in South Africa and therefore did not qualify for a Permanent Residence Permit (PRP).
There is a warrant of arrest out for Ajay Gupta in relation to the Vrede Dairy Project case in the Free State. He currently holds a PRP and not South African citizenship like other members of his family.
Cassim recommends that, if or when Ajay Gupta attempts to enter the country, he be detained.
However, his colleagues advise that the director-general (DG) of Home Affairs should approach the courts to get a declaratory order, confirming he is a prohibited person in the country.
"Essentially, the minister, the DG and the DHA (Department of Home Affairs) must be seen, upon reflection, to have taken the decision to deal with the matter meaningfully and to approach the matter by redressing the wrongs of the past," Cassim says in the executive summary.
Waiting for the investigation to be completed
Gigaba's spokesperson says that it is no secret that the minister had instructed the DG to seek a legal opinion on revoking Ajay Gupta's PRP, as well as the naturalisation of the family.
"The legal opinion was indeed received on May 4, 2018. Hereafter the minister and DG 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," says Thabo Mokgola.
Gigaba met with Justice Minister Michael Masutha and Police Minister Bheki Cele about the issue. They resolved that Home Affairs must allow the criminal investigations to be finalised and any action by Gigaba at this stage might impede on these investigations.
"The meeting with the Security Cluster departments resolved that any actions to be taken by the Department of Home Affairs must be informed by the outcomes of the pending investigations. Currently, the investigations are still ongoing within the criminal justice system. Thus in line with the decision of the security cluster departments' meeting, no action will be taken in this matter at this stage," says Mokgola.
However, this is not the view of Cassim and his colleagues.
The opinion further finds how "the Gupta influence continues to permeate many sectors of the government" and Cassim raises questions around why the arrest warrant for Ajay Gupta is not readily available at the time of writing in May.
"Prima facie, it would appear that concealment of the warrant is for some untoward purpose. Such conduct is not transparent and clearly unbecoming of any official not cooperating with another government department. There must be no misunderstanding. In making available the warrant, there is no prejudice to the State's case, be it criminal or civil proceedings."
The lawyers are scathing of the family's lack of accountability: "The fact of the matter is that the Guptas continue to evade responsibility to deal with genuine concerns raised pertaining to their apparent illegal conduct which has plagued our country into disharmony and, more importantly, resulted in substantial resources being lost which otherwise could have benefited the poor and the unemployed."
Family must be investigated
They urge the Department of Home Affairs to, as a priority, investigate three specific individuals who are still conducting the family's affairs in this country, and who "probably benefited by Guptas' association with government officials wittingly or unwittingly procuring rights to reside in this country".
"They are currently beneficiaries of Guptas' alleged ill-gotten gains," warns Cassim.
The executive summary closes with a final flourish of condemnation: "Finally, the Guptas seem to be undeterred by the turmoil they have caused in South Africa. They are using part of the 'loot' in funding high-powered lawyers to do their bidding in South Africa whilst they live in luxury and conduct their business from [Dubai]."
Cassim has declined to comment on the opinion.
Gigaba on the Guptas: 'This is why I didn't act' - but advocate says he is wrong
Home Affairs Minister Malusi Gigaba has reacted angrily to a report earlier on Wednesday that he neglected to act on a legal opinion which advises 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.
"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".
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 www.gov.za website.