‘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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Lester Kiewit finds out from Stefanie de Saude-Darbandi what the proposed new law means for foreign business Gauteng townships.

As part of plans to revitalize the economy, Gauteng economic development department and premier David Makhura’s policy unit have drafted a new law which seeks to bar foreign nationals from doing business in Gauteng Townships

Lester Kiewit speaks to immigration lawyer Stefanie de Saude-Darbandi for her thoughts on the story.

It's a pity that the government isn't available to give some comment because we need some light shed because this law that they want to pass contradicts and even conflicts with the immigration act

Stefanie de Saude-Darbandi, Immigration Lawyer

In terms of the Immigration Act, anyone who has a business or work visa is able to work.

Stefanie de Saude-Darbandi, Immigration Lawyer

What this bill is essentially saying is that if somebody in these townships has a business visa or work visa it is not going to be recognised.

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The Western Cape provincial government has formally requested the introduction of a ‘remote working’ visa for South Africa.

In a letter addressed to both the minister of tourism and the minister of home affairs, the Western Cape’s provincial minister of finance and economic opportunities David Maynier said that the visa will allow international visitors to stay longer and work remotely while travelling in South Africa.

“Globally, many countries are competing to capture the market for the longer-stay tourist who can work online from anywhere in the world while earning and spending foreign currency in the country they are visiting,” it said.

“This is an important market right now, as this type of tourist is more resilient to the challenges that traditional tourism is facing given ongoing travel restrictions. Such tourists will also remain an important source of sustainable tourism long after the Covid-19 pandemic.”

“Introducing a remote working visa also makes business sense,” said Maynier. “It will attract a significant number of long-term, financially independent travellers to South Africa during a period of economic uncertainty.”

In the long term, remote workers are also more likely to invite their family and friends to visit in the future, he said.

“This could also have positive spin-offs for foreign direct investment, and the promotion of South African goods and services exports as travellers get to know and love all the great things about our country.”

Positive development

The introduction of a remote working visa was first proposed by Western Cape premier in his state of the province address in February.

Winde said that the Western Cape was looking at new ways to drive tourism to the province, and that one potential avenue is attracting ‘digital nomads’ through a new remote-working visa.

The premier noted that Cape Town was recently named on the list of the 50 best cities for remote working.

“These ‘digital nomads’ are a new kind of tourist, who will stay in our province for 3 months instead of 3 weeks, enjoying our tourism offer while working on their laptops,” he said.

“We have everything it takes to be the best remote working location in the world if we remove the red tape – and roll-out the red-carpet for these travellers.

“To do so, South Africa urgently needs to introduce a ‘Remote Working Visa’. Most leading tourism destinations in the world have one already, and we should have one too.”

Western Cape premier Alan Winde said that the new visa would be a great contribution to South Africa’s recovery, given the severe impact that Covid-19 has had on the tourism sector in South Africa.

“The Western Cape is a great place to live and to work and we are ready to welcome these visitors and provide them with a great place to explore while they work.”

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South Africa's critical skills list includes a long list of engineering jobs. Photo: Getty Images

About 97% of listed and multinational companies in South Africa say engineers are indispensable to their business operations and often have to be recruited abroad. Yet government’s draft list of critical skills now contains only half as many engineering professions as it did six years ago.

Marisa Jacobs, executive director of work visa consultancy Xpatweb, which conducted the survey, says that chemical and electrical engineers, for example, were excluded from the department of home affairs’ new draft list.

The list was published in February after being updated for the first time since 2014.

Foreigners with skills on this list who want to come to work in South Africa can get a work visa much faster than those who are not. If your skill isn’t on the list, you may wait for up to six months longer for a work visa, says Jacobs.

The list contains skills that are important for the country’s strategic priorities, which are acute or may be in short supply in the future. It also contains skills that take a long time to develop.

Xpatweb, which helps companies recruit experts abroad, has been conducting surveys to collect real data among listed and multinational companies for the past five years on critical skills they are struggling to fill from the local market.

Jacobs says the latest survey, the largest to date, involved 220 respondents.

It shows that most respondents recruit foreigners for critical positions through LinkedIn (31%) and recruitment agencies (25%).

A total of 15% recruit from Europe, 14% from India and 13% from the UK, while 7% recruit largely in China and the US.

Jacobs said in a workshop this week that the survey shows that engineers, scientists, tradespeople (especially electricians), specialists in healthcare and accounting, as well as senior financial managers are among the positions that businesses in South Africa struggle the most to fill.

More than 80% of respondents are looking for engineers with three or more years of work experience, while 35% need engineers who have an honours degree.

Certain skills were re-included after the results of the survey became known and Xpatweb submitted comments on the draft list

On the new draft critical skills list, however, there are 22 fewer occupations in the category for engineers than there were on the 2014 list.

The 2014 list contained 41 occupations in the category, but now there are only 19 – 11 of which appear for the first time, Jacobs says.

Certain skills were re-included after the results of the survey became known and Xpatweb submitted comments on the draft list.

They include industrial engineer and technologist; engineering manager; mechanical engineering technologist; fitter and turner; registered nurse for child and family care, and for mental health; actuary; food and beverage scientist; and quantity surveyor.

Jacobs says media and marketing specialists, executives, information communication technology specialists and foreign language-speaking workers are also scarce locally.

The draft list does not provide at all for people who are proficient in foreign languages.

City Press reported earlier that this has implications for call centres. The greatest need is for French speakers, followed by those who speak Dutch and Mandarin.

According to Jacobs, companies also have a great need for CEOs, as well as executive operations and financial managers, but of these so-called C-suite skills, only “chief information officer” currently appears on the draft list.

She says the category “general manager”, one of the most popular visa categories under which companies can now bring in CEOs, has also been omitted.

Encouraging is the inclusion of eight new professions or skills in the accounting sector after they were identified as scarce skills by the first survey. These include accounting officer, financial accounting and forensic accounting, and tax expert.

Other visas will then have to be applied for and this process can take much longer

According to Jacobs, the business world still needs to provide its input on what it needs because the list has not yet been finalised. That will probably happen later this year.

Once it is finalised, foreign workers with skills that do not appear on the list will not be able to obtain a work visa swiftly, even if a company urgently needs their services.

Other visas will then have to be applied for and this process can take much longer, she says.

Jacobs advises companies to apply for the renewal of work visas for foreign employees whose skills are no longer on the new draft list. This will prevent them from being caught off-guard.

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The permit services in terms of the Immigration Act will be rendered by the Department of Home Affairs as follows :

 

1. Permanent residence permits appeals applications with effect from 1 October 2021.
2. Proof of permanent residence permits  applications with effect from 1 October 2021;and
3. Permanent residence permits  applications with effect from January 2022.

 

Per Home Affairs proclamation and gazette -  30 June 2021 

 

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