A status update on extradition requests against Guptas and others – Ronald Lamola – DOCUMENTS | #daitngscams | #lovescams

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Despite the advent of globalization, different nations have unique legal traditions and legal systems which require different procedures and requirements for obtaining evidence during an investigation and using that same type of evidence at trial. These procedural and evidentiary rules can prove to be a challenge within the realm of mutual legal assistance and extradition.

The Department of Justice and Constitutional Development through its Director General is designated as a central authority. The central authority facilitates the implementation and operation of an international treaty in public and private international law this includes receiving and processing requests of extradition and mutual legal assistance.

Update extradition requests from South Africa to foreign states

GUPTA Brothers: United Arab Emirates

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Mr Atul Kumar Gupta and Mr Rajesh Kumar Gupta (the Gupta brothers) are accused persons in two criminal matters. The first matter is already before the High Court of South Africa, Free State Division, Bloemfontein (S v M.P Thabethe and 17 Others, Park Road Cas 971/2/2021 (the Nulane matter) in which a provisional trial date has been set for January 2023. In the other matter (S v M.P Thabethe and 27 Others, Park Road Cas 200/7/2017 (the Estina matter), the Gupta brothers have already been charged and warrants were issued against them.

On 18 July 2022, a request was received from the National Director of Public Prosecutions for the extradition of the Gupta Brothers from the United Arab Emirates to the Republic of South Africa to stand trial on charges of Fraud, Money Laundering in terms of Prevention of Organised Crime Act, 1998 and Corruption contrary of the Prevention and Combating of Corrupt Activities Act.

The request is made in accordance with the Extradition Treaty between South Africa and the UAE as well as the United Nation Convention Against Corruption (UNCAC) which is a multilateral international convention to which both countries are Member States. We can confirm that the extradition request has been duly submitted to the UAE central authority.

Shepherd Huxley Bushiri and Mary Bushiri: Malawi

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During November 2020, a request was received by the Department from the National Director of Public Prosecutions (NDPP) for the extradition of Shepherd Huxley Bushiri and Mary Bushiri from the Republic of Malawi to the Republic of South Africa to stand trial on various charges.

The request was subsequently delivered at the office of the Attorney-General in Malawi on 5 December 2020. The extradition hearing proceeded in the Lilongwe Magistrate’s Court in Malawi.

On 19 April 2021, the attorneys acting on behalf of the Bushiri’s argued in court that South Africa could not rely on the SADC Protocol on Extradition as the Protocol has not been domesticated in accordance with section 211 of the Republic of Malawi’s Constitution.

The court ruled that even though the Protocol had not yet been domesticated, that Malawi’s Extradition Act clearly demonstrates in the First Schedule to that Act that South Africa is a designated country for purposes of extradition, and therefore ruled in Favour of the prosecution.

The matter was then postponed to Friday 4 June 2021, for the extradition hearing to start. During the proceedings, the defense argued that the witnesses who would testify against the Bushiri’s in South Africa should travel to Malawi to give evidence during the extradition proceedings.

The Magistrate’s Court ruled in Favour of the defense that the witnesses should travel to Malawi. The DPP in Malawi advised the Department that they are of the view that the Magistrate’s Court misdirected itself as regards what amounts to a preliminary inquiry, and that Section 9 of the Extradition Act of Malawi never envisaged physical presence of witnesses in court during an extradition hearing.

The Office of the DPP in Malawi filed a review application to review and set aside the Magistrate Court’s ruling. The review application was heard on 21 July 2021. The DPP in Malawi indicated that judgment was delivered on 8 February 2022.

The Court ruled in favour of the Presiding Magistrate and indicated that the extradition hearing in Malawi will be heard in the same fashion as a criminal trial, and that evidence may be heard in the form of sworn affidavits or by way of virtual or physical testimony. In that regard the DPP in Malawi indicated that they would inform the NPA in South Africa when witness statements or virtual testimony would be necessary.

On 17 June 2022 the Chief Resident Magistrates Court sitting at Lilongwe, heard the states application for an order of the court to refer the matter to the High Court where the state seeks to ask the High Court the witness depositions on behalf the South Africa must be made before a competent court in South Africa, judgement is reserved for 5 August 2022.

Extradition requests to South Africa from Foreign States

Maren Brynard De Klerk: Namibia

On 15 October 2021, the Department received a Note Verbale from the Ministry of Justice in Namibia containing a request for the extradition of Mr. De Klerk. The Office of the Prosecutor-General in Namibia is requesting the extradition of Mr. De Klerk from South Africa to the Republic of Namibia to stand trial on charges of racketeering, conspiracy to commit an offence, fraud, theft, money laundering and acquisition, possession, or use of proceeds of unlawful activities. The request was forwarded to Interpol and the NPA for execution. Interpol applied for a warrant of arrest; his current whereabouts are being tracked by the Investigating Officer.

Neo Black Movement (NBM): United States of America

The Department of International Relations and Cooperation (DIRCO) forwarded a Note Verbale and attached thereto requests for the extradition of Messrs.’ Prince Ibeabuchi Mark and Toritseju Gabriel Otubu and various other syndicate members from the Republic of South Africa to the United States of America to stand trial on charges of contravention of Title 18, sections 1028A and 2 (aggravated identity theft), section 1343 (wire fraud), section 1349 (conspiracy to commit wire fraud) and section 1956(h) (conspiracy to commit money laundering) of the United States Criminal Code.

Investigations in the United States of America revealed that the accused are Nigerian citizens and members of the Neo Black Movement (NBM), a criminal organisation which committed the offences of internet fraud and money laundering since 2011. One of the cells of the organization is based in South Africa in Cape Town. The American authorities aver that the NBM uses various online identities to further illegal internet-based schemes such as romance scams, advance-fee schemes, and business e-mail compromises. Collectively these fraud schemes by NBM have resulted in over $6.8 million in losses to American citizens.

The suspects were arrested in a sting operation earlier this year and appeared before the Cape Town Magistrate’s Court. The extradition hearing has not yet started as the suspects are currently applying for bail, which is being opposed by the NPA.

Mutual legal assistance requests to and from foreign states

Kusile Project: United States of America

A request for Mutual Legal Assistance was received from the United States relating to allegations of fraud and corruption during the awarding of certain tenders, and improper payments made with regards to the Kusile Power Plant.

During July 2020, the requested assistance was approved, and the request was referred to the NPA and Interpol to assist. NPA and SAPS are currently conducting investigations.

PRASA: Spain

The matter relates to alleged corruption by Mr. Makhensa Mabunda and others, acting on behalf of PRASA in the supply of locomotives by a Spanish company, Vossloh Espana Sau. On 9 March 2022, a request for mutual legal assistance was received from Spain and on 11 April 2022.

The NPA and Interpol are seized with the gathering of the evidence. On 10 May 2022, the Magistrate, Pretoria was appointed to assist with the request. Currently a court date is awaited from the office of the DPP, Pretoria to finalize the matter.

Extradition cases to and from foreign states, previously reported on, where the status of the case has been updated

Mr. Krejcir : Czech Republic

During June 2002, the Department received a request for the extradition of Mr. Krejcir from the Czech Republic. The Czech authorities are requesting Mr. Krejcir’s extradition to stand trial in several courts on the following charges: conspiracy; four charges of fraud; murder; counterfeiting money; tax evasion; unlawful possession of firearms; credit fraud; kidnapping; blackmail and abuse of information in commercial transactions.

On 16 March 2018, the magistrate found Mr. Krejcir extraditable.

Mr. Krejcir is also currently standing trial in the High Court: Gauteng Local Division, on the following charges: conspiracy to murder, murder, two charges of unlawful possession of a firearm and ammunition, robbery, and assault.

Mr. Krejcir will also stand trial in the Regional Court on the following charges: conspiracy to escape, corruption and unlawful possession of firearm and ammunition. The case, which is on the roll, will only proceed once the abovementioned High Court case has been finalized.

There are further criminal cases pending before South African Courts involving Mr. Krejcir, which have not been finalized.

Mr. Freedendal : Australia

During December 2016, the Department received a request for the extradition of Mr. Freedendal. The Australian authorities are requesting Mr. Freedendal’s extradition to stand trial on the following charges: five charges of persistent sexual exploitation of a child; four charges of unlawful sexual intercourse; and fifteen charges of indecent assault.

At the time the request was received, Mr. Freedendal, a citizen of Australia, was serving a sentence of five years imprisonment imposed by the Cape Town Regional Court upon conviction of sexual offences committed against children. Mr. Freedendal was sentenced during April 2015. During February 2016, the Parole Board found Mr. Freedendal eligible to be released on parole under correctional supervision. However, Mr. Freedendal was not released as a warrant for his detention was obtained after receipt of the request for his extradition. Mr. Freedendal has since completed his sentence on 7 April 2020.

An extradition enquiry proceeded in the Wynberg Magistrates’ Court on 4 October 2017. On the same day, the magistrate found Mr. Freedendal liable to be surrendered. During November 2017, Mr. Freedendal lodged an appeal against the magistrate’s finding. During June 2018, Mr. Freedendal’s legal representative forwarded representations, in the form of a letter to the Minister, where the Minister was requested not to surrender Mr Freedendal. However, Mr. Freedendal’s legal representative has been informed that representations cannot be considered until the appeal has been finalized.

During September 2018, Mr. Freedendal withdrew his appeal. After a follow-up during October 2018, Mr. Fredendaal’s legal representative informed the Central Authority that the abovementioned letter is still relied on, and that additional information will be forwarded. After requests by the central authority that the additional information be provided, documentation regarding Mr. Freedendal’s health and a petition signed by members of the United Mission Church in Cape Town were forwarded to the Central Authority on 16 April 2019.

The Australian Central Authority informed the South African central authority that the Prison Health Services will be responsible for Mr. Freedendal’s health care and that they would be able to manage his conditions. This was confirmed by a doctor. In the affidavit by the Senior Prosecutor, the delay in Mr. Freedendal’s prosecution was explained. In the affidavit by the Detective, it was stated that the witnesses were still available.

On 27 July 2020, the Minister issued an order in terms of section 11(a) for the surrender of Mr. Freedendal. Mr. Freedendal then lodged a High Court application, consisting of a Part A and a Part B. In Part A of the application, Mr. Freedendal sought an order that he be released pending the hearing of Part B of the application due to his health conditions. In Part B, an order is sought that the surrender order issued by the Minister be reviewed and set aside. The application is being opposed and the State Attorney will liaise with Mr. Freedendal’s attorneys to obtain a court date for Part B of the application to be heard.

Mr. Kouwenhoven: Netherlands

On 7 July 2017, the Central Authority received a request from The Netherlands, for the extradition of Mr. Kouwenhoven . The Dutch authorities is requesting Mr. Kouwenhoven’s extradition to serve a term of nineteen years imprisonment imposed upon conviction on three charges of contravening article 8 of the War Crimes Act and two charges of contravening the Sanctions Act, 1977. The offences were committed in Liberia during a war which took place from 1997 until 2003.

Mr Kouwenhoven provided Mr Charles Taylor with weapons and ammunition, a camp for the storage and distribution of the weapons and ammunition and assisted Mr Taylor’s troops by arming his own employees. The Netherlands exercised jurisdiction over the offences as Mr Kouwenhoven is a Dutch citizen.

Mr. Kouwenhoven was arrested on 8 December 2017 and appeared in the Cape Town Magistrates’ Court and was granted bail on 9 December 2017. On 18 December 2017, the Central Authority received an amended request for extradition from The Netherlands. Various litigation cases were brought by Mr. Kouwenhoven, which resulted in prolonged delays to finalize the matter.

During March 2022, Dutch authorities informed us that Mr. Kouwenhoven applied for clemency in the Netherlands based on his poor health. Due to an error, he was granted postponement of the execution of his sentence. This was revoked but his lawyers are requesting the Dutch authorities to reinstate the postponement of his sentence.

Mr. Kouwenhoven had until 6 May to file documents regarding the clemency to the Magistrates’ Court Cape Town, which he did. Mr. Kouwenhoven then brought an application to obtain copies of communication pertaining to the clemency issue from the NPA in terms of the PAIA Act. The application is being opposed by the Department and the NPA.

Chang M: USA & Mozambique

On 17 August 2021, a decision was taken to extradite Mr. Chang to the Republic of Mozambique.

The Forum De Monitoria Do Orçamento (FMO), brought an application to review and set aside the Minister’s order. The matter was heard, and on 9 November 2021, Judge Victor gave an order setting aside our decision and substituting it with an order that Mr. Chang should be extradited to the USA. Mozambique then filed an application for direct access and leave to appeal to the Constitutional Court   the was application with dismissed the application with costs on 7 June 2022. The Mozambican government has since applied for leave to appeal to the full bench of the High Court. The matter was heard on 20 June 2022 judgment is reserved.

Mutual legal assistance requests cases to and from foreign states, previously reported on, where the status of the case has been updated

Bank of Botswana: Botswana

A request for Mutual Legal Assistance was received from Botswana relating to an investigation into money laundering and fraud. The requested assistance was approved in September 2020, and the NPA and SAPS conducted investigations.

However, the Republic of Botswana through Afriforum brought an application when for a mandamus for the Minister to approve the request for Mutual Legal Assistance, even though the request had already been approved.

On 7 July 2021, a draft order was granted by the court in favor of the Republic of Botswana. We brought an application to rescind the order in May 2022, and the court did not make a judgment and requested that the parties meet to resolve the matter out of court. On 4 April 2022, all the evidence was hand delivered to DIRCO and on 1 June 2022, Dirco delivered the evidence to the High Commission of Botswana. For purposes of the Central Authority the matter has been finalized.

Mr. Bobroff: Israel

In March 2017, an Israeli Police investigation was initiated after freezing assets based on suspicious transactions by the suspect, Daren Bobroff (hereinafter: “Bobroff”). The Israeli money laundering investigation suspected that the funds were proceeds of offenses that Bobroff and his father Ronald had allegedly committed in South Africa.

Therefore, on May 8, 2017, Israel sent South Africa a Request for Legal Assistance to provide information concerning the South African investigation. Israel also requested that South Africa send a Request for Legal Assistance, to seize the assets on South Africa’s behalf for their investigation. Unfortunately, it was determined investigative avenue was not viable, since it was not possible to establish a link between said assets and the offences allegedly committed by Bobroff in South Africa.

Consequently, Israel was unable to execute South Africa’s Request for Legal Assistance. Due to the inability to link the assets to the South African investigation, the seized funds were at immediate risk of being released. As such, in January 2019, Israel sent a delegation to South Africa, and after a productive meeting with their South African counterparts, Israel was able to build a domestic money laundering investigation against Bobroff regarding offenses that Bobroff perpetrated towards two Israeli banks.

In the context of this domestic investigation, South Africa provided important legal assistance, in particular the provision of a vital affidavit by a SARS representative. A civil forfeiture proceeding was also initiated by the Israeli prosecution based on the same Israeli domestic offences.

In the context of the civil forfeiture proceedings, the Israeli authorities recently entered a settlement with Bobroff. Considering a wide array of factors, the settlement included the closing of the criminal file against Bobroff and the forfeiture of funds that were seized in Israel in the civil forfeiture and criminal proceedings. In recognition of the important assistance provided by the South African authorities and law enforcement in the Israeli investigation, the State of Israel proposes sharing a total of 3 million NIS with the Government of South Africa.

On 19 May 2021, the Asset Forfeiture Unit at the NPA corresponded with their counterparts in Israel regarding the transfer of the funds to South Africa. On 26 May 2021, the attorneys representing Bobroff in South Africa indicated to the NPA that they intend to petition the Constitutional Court to stop the process. Pleadings are currently being exchanged, and a court date is yet to be determined.

Noordoewer: Namibia (Phala Phala)

The request which the Department of Justice and Constitutional Development received was not specifically in relation to Mr David Immanuwela only as intimated by our sister nation’s police force.

It is not correct that there was no response from South Africa on the requested mutual legal assistance in the case involving Mr David. The Central Authority of the Republic of South Africa has transmitted correspondence through the diplomatic channels to set the record straight with the Namibian authorities.

During September 2020, the Department of International Relations and Cooperation (DIRCO) forwarded a Note Verbale from the High Commission for the Republic of Namibia and attached thereto a request for mutual legal assistance dated 13 August 2020, by the authorities in Namibia, to the Department.

In the request the authorities in Namibia requested assistance from South Africa in a criminal investigation relating to the contravention of Section 4, 5 and 6 of the Prevention of Organised Crime Act 2004, (Act No. 29 of 2004) of Namibia.

The request was first referred to the Specialised Commercial Crime Unit (SCCU) of the National Prosecuting Authority to ensure that the request does not involve foreign bribery, as South Africa acceded to the OECD (Organisation for Economic Cooperation and Development) Convention against Bribery of Public Officials in International Business Transactions (Bribery Convention) during 2007. The request was thereafter returned to the Department by the SCCU with a recommendation that the request be processed.

The matter was allocated to an official within the Chief Directorate: International Legal Relations to process the request. The request was perused and found that it did not comply with the provisions of the International Cooperation in Criminal Matters Act, 1996 (Act No: 75 of 1996) (ICCMA). The request could therefore not be processed at that stage.

The request was returned to DIRCO on 18 May 2021, accompanied by a letter indicating to the authorities in Namibia how the request should be amended to enable South Africa to render the necessary assistance.

On 31 August 2021, DIRCO sent an electronic Note Verbale to the High Commission of the Republic of Namibia, highlighting the feedback from the Department and requesting the authorities to amend the request.

On 1 September 2021, the High Commission of the Republic of Namibia acknowledged receipt of the Note Verbale. Since then, the authorities in Namibia have not sent an amended request back to South Africa.

The Chief Directorate: International Legal Relations was previously requested to confirm whether a request for mutual legal assistance relating to Mr David Imanuwela had been received from the authorities in Namibia. The request could not be located, as the file was opened under a different name. The request related to an investigation of docket Noordoewer CR 14/06/2020, in which Mr David was one of three suspects. The other two suspects are Messrs Petrus Afrikaner and Erkki Shikango.

On 16 June 2022, the Inspector General of the Namibian Police Force, released a press statement which detailed amongst others, a meeting between the police authorities of South Africa and Namibia where certain operational information was allegedly shared on Mr David and other Namibian nationals suspected of having stolen money from South Africa and fled to Namibia.

At this point we are waiting for an amended request from Namibia.

Issued by Chrispin Phiri, Spokesperson: Ministry of Justice and Correctional Services, 26 July 2022