How bad is it? Eskom has no CEO, is about to lose its COO and has no dedicated chair (who is still distracted by the small matter of being the chair of one of our major banks).
Its head of generation was appointed on Thursday and has at least four bosses who all want different things. The last one fled because of threats to his family, and the last CEO narrowly escaped an attempted assassination.
Eskom is collapsing: it has no plan, it has no leadership. Be in little doubt how bad things will get this winter.
In this context it is easy to fall into a comfortable trap and stereotype “the government” as being completely useless, and assume everything that goes wrong is the result of gross incompetence. It needs to be made clear that this is not always the case.
An example is the extradition of the Gupta brothers from the United Arab Emirates (UAE). There’s no doubt, in our yearning for some kind of justice after the decade of state capture, that their extradition to face justice was a point of light.
The announcement of the dismissal of the extradition request by a UAE court came in the same week we were plunged back into intense load-shedding, for which the Guptas are partially responsible.
South Africans have been shocked — none more so than people at the National Prosecuting Authority (NPA) — by how SA has been treated by the UAE. It seems that if anything, and contrary to the rage expressed by citizens, the gravest crime the authority has committed is naiveté.
In Dubai, the law is different. It is shambolic, secretive and can be arbitrary. Radha Stirling, CEO of Detained in Dubai, a law firm that specialises in helping foreigners navigate the courts in the UAE, told me that who you are and how much money you have will result in significant implications for the outcome of your legal case. “Wealth is protection in the UAE,” she said. As we know to our great cost, the one thing the Guptas have is money.
It is into this chaotic milieu that SA prosecutors strolled, confident that a newly minted extradition agreement, ratified between the two countries in 2018, would bag us the biggest prize of all in the public’s quest for justice. But for London-based Stirling, we have been naïve. “It seems they are struggling to achieve the mutual co-operation they’d hoped for,” she wrote on her website earlier this week.
In UAE jurisprudence there is no requirement that a court must follow precedent, even if set by a higher court — although it might if it wishes. As a result, secretive hearings can result in arbitrary outcomes. Much of the law is conducted behind closed doors, particularly in the case of extradition hearings.
Who you are, how rich you are, and where you are from matters very much to legal outcomes in Dubai. The good folk at the NPA ought to have known this. Sources in the NPA tell me they were assured, repeatedly, that they had “ticked all the boxes”. They were in regular communication with their counterparts in the UAE until February, when suddenly and inexplicably it all went quiet.
What we’ve since learnt is that the matter of the extradition of the Guptas was heard in secret in February and dismissed. After repeated and increasingly baffled requests for updates, SA prosecutors were only informed of this on April 6, by which time the opportunity to lodge an appeal had passed.
This doesn’t surprise Stirling at all. I am told the NPA is trying to work out whether condonation is possible, and that they will go through whatever processes are required, but Stirling is more pragmatic.
Realistically, to get the extradition of the Guptas back on track, only “diplomacy can fix it”, she says. The UAE has a history of using high-value extraditions as leverage. Writing about the Guptas on her website, and citing several strong examples, Stirling said “the UAE will extradite people where there is a clear quid pro quo arrangement with the requesting country”. For us, that means roping in the department of international relations & co-operation.
It’s worth noting two things with regard to SA and the UAE. The UAE voted to support a condemnation of Russia’s invasion of Ukraine at the UN, where to our great international shame we abstained. And, like SA, the UAE was recently “greylisted” by the Financial Action Task Force. It is keen to clean up its image with the West — recent extraditions illustrate this — but its relationship with SA is likely to be bloodless and transactional. They know we no longer have friends in Washington or London or Frankfurt.
Failing that — and it’s hard to see the department of international relations fixing this — there is another solution. Stirling says the simplest approach to getting the Guptas back in SA for trial is to start from scratch.
“The approach should probably be to lodge a fresh extradition request on the basis of a different crime,” Stirling said to me by phone. Now she is no doubt correct, but in SA we all know the time and effort that has gone into trying to prosecute the Nulane Investments matter. For the NPA to start from scratch seems dispiriting.
Of course, SA should do everything all at once to get the Guptas back, even though the events behind closed doors to protect them in the UAE is as fishy as hell. Better diplomats would have told us this. And sure, there are undoubtedly elements of the ANC popping MCC corks at the news that there will be no Gupta in any dock soon.
For once, though, we need to temper our fury. The UAE has treated us badly. We should have seen it coming, but this mess isn’t all on us.
• Parker is Business Day editor in chief.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.