Are the Guptas South African citizens? According to Minister of Home Affairs Malusi Gigaba, on Tuesday addressing the parliamentary committee investigating state capture, Ajay and Atul Gupta were never South African citizens.
But his statement flatly contradicts his written response to a parliamentary question in 2016, before his stint as finance minister – which was that members of the Gupta family were awarded accelerated South African citizenship in 2015 because of their "contribution to the South African economy".
The saga involves a trio of alleged Gupta proxies at home affairs: Gigaba, former home affairs minister Hlengiwe Mkhize and director-general Mkuseli Apleni – who have also given contradictory and ambiguous answers regarding the accelerated citizenship scandal.
Here is a chronicle of claims made in the Gupta citizenship saga, and a review of the evidence in the public domain – a trail of contradiction and revision that forces us to ask: was Malusi Gigaba lying then, or is he lying now?
1. Atul Gupta's passport
According to TimesLive, a copy of Atul Gupta's passport, found in the GuptaLeaks emails, lists Atul as "South African" under nationality. Non-citizens cannot apply for passports, so Atul had to be classified as South African before he was issued the passport on July 31, 2015.
2. Gigaba admits he granted early citizenship to the Guptas (2017)
In a statement issued by then-finance minister Gigaba on June 6, 2017, he admitted to granting early certificates of naturalisation to the Guptas, which made them SA citizens, when he was in charge of home affairs. But he insisted at the time that his actions were within the law.
The EFF accused him of unduly granting the Gupta family South African citizenship, and for good reason.
In a letter dated January 22, 2015, home affairs staffer GG Hlatshwayo, on behalf of department director-general Mkuseli Apleni, "correctly denied" five members of the Gupta family (including Atul and Ajay) South African citizenship, on the grounds that they "did not comply with the requirement in terms of section 5(1)(b) of the South African Act 2010".
After their unsuccessful application for naturalisation, the Guptas were advised to make another attempt on December 23, 2015.
A few months later, in a letter dated May 30, 2015, Gigaba wrote to the Guptas to grant them what he termed "early naturalisation".
A few weeks after telling Parliament in June last year that there was nothing "unlawful" in the Guptas' "early naturalisation", Gigaba and the then-home affairs minister, Hlengiwe Mkhize, were no-shows in Parliament to face the home affairs committee – Mkhize said she needed concrete proof that the Guptas had broken the law before she would revoke their South African citizenship.
Gigaba maintained that "granting of naturalisation certificates of this nature is not unusual". He said similar courtesies had been extended to prominent businessmen, including executives of multinationals and sportspeople, and there was no reason to question the application.
"The fact that Mr Gupta and family contribute to the economy of South Africa provided substantive grounds for consideration of their application for naturalisation under exceptional circumstances," Gigaba insisted.
3. Why was SA citizenship so important to the Gupta family?
Since India does not allow dual citizenship, the question that should be posed is whether any Guptas renounced their citizenship when they became naturalised South Africans. Once classified as South African citizens, there are a lot of benefits they obtained, as opposed to when they held permanent residency.
Importantly, citizens have the right to vote – but there was also a huge financial incentive to give up their Indian citizenship for SA citizenship – namely, broad-based black economic empowerment (BBBEE).
In 2017, the South African Chamber of Mines was ready to take the newly produced mining charter to court to stop it from being implemented. One of the chamber's main gripes was that former mining minister Mosebenzi Zwane had changed the words "previously disadvantaged" to "black".
"In other words, for reasons best known to himself‚ the minister‚ through the publication of the 2017 charter‚ now seeks to benefit a category of person who was never disadvantaged by unfair discrimination before the Constitution took effect‚" the chamber said.
If #Guptas are not South African citizens, how did they get BEE certificates & how did they get government tenders such as Mediosa & Estina Dairy? Can Home Affairs explain that?— Jabulani Nzilane (@JabulaniNzilane) March 6, 2018
"The definition of black person impermissibly widens the scope of those who may benefit from the provisions of the charter to include not only persons or communities disadvantaged by unfair discrimination before the Constitution took effect‚ but also Africans‚ coloureds and Indians who became citizens of the Republic of South Africa by naturalisation on or after April 27, 1994 – and who would have been entitled to acquire citizenship by naturalisation prior to that date."
In other words, Africans, coloureds and Indians who immigrated and became SA citizens after the end of apartheid are not "previously disadvantaged".
4. How to become an SA citizen
In 2017, Apleni claimed that the Gupta family applied for a visa in 1995, and in 2008 applied for permanent residency. The Gupta family argued they had business in the country. As permanent residents, they had "every right of a South African citizen, except to vote", explained Apleni.
Permanent residency and citizenship is being mixed up, so here's a short explainer. Obtaining citizenship in South Africa is a process involving three steps:
Temporary visa/residence (Guptas 1995): This is a permit issued to all foreigners with general qualifications intending to work in South Africa. If you've had temporary residency for five years, and were employed throughout this time, you could be eligible for permanent South African residency.
Permanent residence (Guptas 2008): This is a permit issued to foreigners who wish to reside permanently in South Africa, so it is basically living in South Africa but as a foreigner. This is when you have every right of a South African citizen, except to vote.
Emphasis is placed on immigrants who are in a position to make a meaningful contribution to broadening the economic base of South Africa.
South African citizenship (Guptas 2015): You have to have permanent residency before you can apply for South African citizenship. The requirements are:
- You must be of good and sound character;
- You are proficient in one of South Africa's 11 official languages; and
- You must have adequate knowledge of the "duties and responsibilities" of a South African citizen.
So, last year Malusi Gigaba and his allies were arguing vehemently that the Guptas are South African citizens, and there was nothing dodgy about the way they achieved that.
This year, Gigaba is protesting that the Guptas were never SA citizens, which means that he and several other Zuma-era ministers owe us an explanation as to how non-citizens could be involved in BBBEE deals like Shiva Uranium, Optimum Coal and Estina Dairy.
Which is it, Minister?