‘I am advised and respectfully submit that our
courts have held for nearly a century that a fugitive from justice has no
standing to approach a South African court’ — Home Affairs DG Livhuwani Tommy
Makhode.
Atul Gupta’s audacious bid for a new South African passport while
dodging State Capture corruption investigations and criminal charges has been
dented by a decisive response from the Department of Home Affairs.
It has told him, in no uncertain terms, that South African courts do not
entertain fugitives from justice.
“I am advised and respectfully submit that our courts have held for
nearly a century that a fugitive from justice has no standing to approach a
South African court,” Home Affairs Director-General Livhuwani Tommy Makhode
states in an affidavit filed in June 2021.
By definition, such fugitives refuse to submit to “our laws and our
courts” and avoid the processes of the law through flight out of the
country, Makhode says.
The Guptas fled from South Africa as the investigations into their involvement
in State Capture, fraud and corruption gained momentum.
“Because they put themselves beyond the reach of the South African law,
fugitives from justice are not entitled to invoke the machinery of the law or
the protection or authority of the courts when it suits them to do so.”
Makhode’s sworn statement is in response to Atul Gupta’s high court
application to compel Home Affairs to give him a passport — one that would be
valid for 10 years.
It was a remarkably bold bid by him in light of the corruption scandals
surrounding him and his brothers, Ajay and Rajesh Gupta — they fled SA for fear
of arrest and prosecution and are unwilling to return to the country
voluntarily, court papers state.
Atul Gupta first went to court in January to review and set aside a
decision by Home Affairs not to issue him with a new passport, alternatively,
its alleged failure to make such a decision.
In an affidavit filed in support of his application for a judicial
review in terms of the Promotion of Administrative Justice Act, he bemoaned the
“inordinate delay” amounting to the “unlawful refusal” of Home Affairs to issue
him with a new passport.
Describing himself as a “South African citizen” since 2002, Atul Gupta
said he was a resident of Dubai and had always been able to apply for a
passport without any hassle.
He received a new passport in 2013 which, although it was only due to
expire in 2023, had filled up eight years earlier, in 2015. He was again able
to get a new passport, one that was due to expire in 2025.
“Once again, I began to run out of pages in my passport long before the
expiry date.”
He approached the South African consulate-general in Dubai on 25
September 2018 for a new passport. Having submitted all the relevant
paperwork, Atul Gupta says he was told the application would take six months
because he had applied in Dubai and not SA. However, he spent most of 2019
inquiring unsuccessfully about the delays.
Things became clearer in December 2019 when Home Affairs Minister Aaron
Motsoaledi, in a TV interview, said the application would be “locked in a safe”
and that it would be irresponsible for Home Affairs to issue him with a
passport while the Department of Justice was negotiating for his repatriation
from the UAE.
His lawyers contend that the evidence in the records provided by Home
Affairs demonstrated that a decision had in fact been taken to refuse his
passport application.
As a result, they want a decision they believe was taken in September
2020 to be reviewed and set aside.
But the department says it does not believe he is entitled to the relief
sought because he lacks legal standing to litigate due to his status as a
fugitive.
It also argues that his case ought to fall on the merits, because no
decision had previously been taken to refuse his passport application and his
suggestion otherwise could be based on a “misunderstanding” of information
previously provided to him.
Home Affairs argues that it had only taken the lawful action to turn
down his application following the institution of criminal charges against him
by the National Prosecuting Authority (NPA).
Atul Gupta is a co-accused in a fresh criminal case, with his wife,
Chetali, brother Rajesh and his wife, Arti.
Even if the court concludes that he may litigate in a South African
court, his application is flawed, Home Affairs argues.
This is because a valid decision has been taken to refuse his
application in terms of South African passport regulations which provide for a
refusal on the grounds that an applicant stands to be charged with a criminal
offence.
Home Affairs included details of an affidavit submitted by the head of
the NPA’s Investigating Directorate, Hermione Cronje.
The Investigating Directorate recently announced that it had obtained arrest warrants for Atul Gupta and several
relatives. The warrants and applications for Interpol Red Notices
relate to a nearly R25-million fraud and money laundering case in the Free State
that led to the arrest of their former associate, Iqbal Sharma.
Sharma was denied bail and remains in custody until his next appearance
on Monday, 5 July.
Cronje, the affidavit states, provided details of the existing charges
against Atul Gupta in addition to others likely to be brought against
him.
Once regarded as extremely powerful due to the close relationship they
enjoyed with former president Jacob Zuma, the Guptas have not travelled to
South Africa for several years.
They left hurriedly after several South African banks terminated their
accounts in 2016. A year later there was really no turning back as the
#GuptaLeaks emerged to expose the vast extent of their alleged criminal
enterprise.
Despite them being in self-imposed exile in the UAE, the Gupta name has
dominated testimony before the State Capture Commission chaired by Deputy Chief
Justice Raymond Zondo for nearly three years.
The brothers and their one-time kingpin, Salim Essa, have all been
slapped with financial sanctions by the
US government.
The UK followed suit in April as
part of a new global anti-corruption regime.
Atul Gupta cannot credibly contend that he is not a fugitive.
“If Mr Gupta denies that he is a fugitive from justice, then I invite
him to state on oath when he will return to South Africa,” says Makhode. DM
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