Just how close the Guptas have become to the ruling Dubai monarchy could play a role in whether or not they are extradited to South Africa to face trial for the alleged crimes they have committed.
In a move that surprised many, the Hawks swooped on Saxonwold last week, February 14, searching for Ajay Gupta, the eldest of the notorious trio of Gupta brothers, who they believed was still in South Africa.
However, according to the Indian press, he was attending a wedding in India before flying out of the country, escorted by local protection officers. Where he flew to from there isn't clear, although News24 quotes sources within Dubai saying that he is at his mansion in the plush suburb of Emirates Hills.
There is no doubt that his brother Atul was in Dubai, at least on February 8. He was there when he signed an affidavit that forms part of his application to have a preservation order obtained against him by the NPA's Asset Forfeiture Unit (AFU) set aside.
In the court papers, dated February 8, Atul acknowledged that the affidavit was signed and sworn in Dubai. The affidavit was stamped and signed by a commissioner of oaths at the South African consulate in Dubai.
With the Hawks and the minister of police making it clear that they consider Ajay Gupta a fugitive from justice – although they have not yet stated for what crime he is being sought – there could soon be moves underway to have him extradited from whatever country he is in. It seems most likely to be the UAE or India.
If he is in India, the process could be easier, as South Africa has an extradition treaty with the Asian country. There is, however, no agreement between South Africa and the UAE. But that does not mean that South Africa cannot apply to the UAE to have him extradited – the process will just be slightly more complicated than if a treaty had been in place.
South Africa went through this process in the extradition of George Louca, the man who was accused of killing strip-club owner Lolly Jackson. Louca ran away to Cyprus. He was arrested there after the South African authorities appealed to their Cypriot counterparts, and Louca appeared in a local Cypriot court.
'Extradition agreement' in progress
The extradition process took several months, but he was brought back to South Africa to face trial. He died of lung cancer before his case was ever finalised.
Last week, British peer Lord Peter Hain, in an "ideas for action" document, called for an extradition treaty between South Africa and the UAE.
Hain said Dubai was the "main centre for collecting cash to make cash payments to bypass anti-money laundering laws".
"At the moment, we don't have any [extradition] agreement with the UAE, but we are in the process of doing this, [we] just need Cabinet's approval," said spokesperson for the department of justice and constitutional development Stephans Mahlangu to Fin24.
Chris Watters of Chris Watters Attorneys said that the fact that South Africa does not have an extradition treaty with the UAE does not stop a person from being extradited from there. He said an extradition treaty between two countries merely streamlines the process. Without an extradition treaty, it becomes a diplomatic process, where one head of state talks to another to make the request.
In the case of Ajay, a different process may be used – and that is through Interpol.
Watters said that once South Africa has issued a charge sheet, we can call on Interpol to issue a red notice. This means that if any of the Guptas are red-flagged and they travel through an Interpol country (which is almost every country in the world), they have to be arrested.
Watters said that after an arrest has taken place, the fugitive's return to South Africa will depend on an extradition process and, depending on the laws of the country where they are held, the fugitive can be held with or without bail until that process is seen through.
Watters said that some red notices are published on Interpol's website and some are not. This is done to encourage alleged perpetrators to travel unknowingly, so that they can be arrested when they go through international airports.
A former member of Interpol explained that if an extradition is taken through diplomatic channels, which is what is likely to happen between South Africa and the UAE, it means a formal request must be made from one head of state to their counterpart. First, police must make sure the accused is in the country they are making the request to, and the country must believe that they meet the requirements for extradition, which is done through the foreign country's local court.
If South Africa does apply for Ajay or any of the other Gupta brothers to be extradited, the UAE could be willing to comply because both countries are part of the United Nations Convention Against Corruption, which was passed by the U.N. General Assembly in 2003.
Dubai investigating alleged money laundering
The convention sets out the rules regarding extraditing those accused of corruption, and it requires the requested state to either extradite the fugitive, or prosecute the fugitive in its own courts.
The convention says that if a state that makes extradition conditional on the existence of a treaty receives a request for extradition from another state with which it has no extradition treaty‚ it may consider this convention the legal basis for extradition.
The UAE has cooperated with extradition of fugitives in the past, with or without extradition treaties.
In a press release, the International Criminal Cooperation Department at the Directorate General of Criminal Investigation in the UAE said that, between 2002 and 2004, there were 227 fugitive criminals who were tracked down and exchanged with foreign countries, including those they had signed extradition treaties with and those they had bilateral agreements with.
There have also been signs that Dubai-based institutions were not impressed with the negative publicity the Guptas have brought to the UAE.
News24 reported that after they visited the country in September last year, and revealed that many of the Gupta businesses in Dubai appeared to be nothing more than shells to launder money, Dubai's central bank announced it would be looking into alleged money laundering by the family.
The president of the Dubai Chamber of Commerce and Industry, which represents the business interests of over 200,000 companies, said at the time that the allegations were being discussed at the highest level.
One hitch in the plan could be the question of how close the Guptas have become to Dubai's ruling monarchy.
In News24's trip to the city, it was suggested the brothers, who have a history of making strong connections with political leaders, could have a relationship with Dubai's ruling elite.
And the monarchy in Dubai has the power to block the extradition of any suspects.
According to the Citizen newspaper, UAE law firm Hadef and Partners said the monarchy can turn down extradition requests on grounds such as "the person is a UAE national", or if the accused is seen to have committed a "political crime".
We have no choice but to wait and see what happens.