14/06/2017 06:39 SAST | Updated 14/06/2017 06:57 SAST

Experts: It Seems Gigaba DID Break The Rules In Giving The Guptas Early Citizenship

He should have informed Parliament.

Malusi Gigaba.
Bloomberg via Getty Images
Malusi Gigaba.


Experts say Finance Minister Malusi Gigaba's explanation for awarding the Gupta family South African citizenship may have landed him in even hotter water.

Immigration policy experts questioned whether Gigaba followed protocol which stipulates he must make it known to Parliament if he has granted citizenship to someone under exceptional circumstances, and must give reasons for doing so.

The former home affairs boss admitted on Tuesday that he granted early certificates of naturalisation to the Guptas during his tenure at that department, but he said his actions were within the prescripts of the law.

This came after the Economic Freedom Fighters released two letters between home affairs officials and the Gupta family, which shows Gigaba allegedly waived five-year residential requirements to grant the family citizenship.

The first was penned by then director-general for home affairs‚ GG Hlatshwayo‚ who had written to the family in January 2015, declining their application‚ saying they had not lived in the country for the required five years.

But five months later, Gigaba wrote to Ajay Gupta, saying he had decided "by the virtues of the powers vested in [him]" under the South African Citizenship Amendments Act, to waive the residential requirements in regards to the family's application for naturalisation".

The policies Gigaba cited in his response do vest authority on the minister to step in and allow citizenship to anyone who fits the criteria, but this is only done in extremely rare circumstances -- something which Gigaba, in his statement, says is "not unusual".

Exceptional circumstances
Specialist immigration and nationality lawyer, Gary Eisenberg, said the Citizens Act makes it clear that this can only be done in exceptional circumstances but Gigaba, in his response, does not say what these circumstances were.

Eisenberg said the act also said it was Gigaba's duty to table the names of each individual he granted citizenship to, and the reasons that he did so, in Parliament. He questioned whether Gigaba had in fact done so.

"Another question is how did this specific matter, after it was refused, get referred all the way up to the minister? This does not happen with the average person. There is also no appeal process. Normally under ordinary circumstances, Home Affairs does not accommodate or respond to administrative appeals," Eisenberg said.

Specialist immigration attorney Chris Watters also questioned what the exceptional circumstances were for Gigaba to step in and grant the Guptas South African citizenship.

He said if these circumstances are not exceptional, the awarded citizenship can be withdrawn by the current minister.

"My experience is that there is policy which stipulates this legislation must be used incredibly sparingly. In my 25 years in this field, I only know of two instances where this was done. I would like to see whether this was disclosed in Parliament or not," Watters said.

"In terms of the ordinary course, I don't know how this matter landed before the minister. It is extraordinary for a case to be referred to the minister in such speed."

Gigaba's defence
In his response on Tuesday, Gigaba said the granting of naturalisation certificates of this nature is not unusual.

"Similar courtesies have been extended to prominent businessmen, including executives of multi-nationals, and sports people. There is no impropriety on the part of the [Gigaba] in relation to how the application in question has been handled," a Treasury statement said.

"It is not true that Minister Gigaba opened the gates for the Gupta family; the Gupta family has been permanent residents in South Africa since 2008. Furthermore, there is no bombshell in relation to this matter, given that everything was done within the prescripts of the law."

Gigaba has requested the Department of Home Affairs to make the motivation pertaining to the Gupta's application, and any other issue relating to the Gupta family, available to the media.

"I have requested the Department of Home Affairs to provide chronological details of how all applications by the Gupta family have been handled by the Department of Home Affairs from the beginning. We have no doubt that the whole process has been handled by the book in terms of our laws," said Gigaba.

It also remains unclear as to whether the Guptas have revoked their Indian citizenship as the country does not allow dual nationalities.