ATC190314: Report of the Portfolio Committee on Home Affairs Inquiry on State Capture in Granting of Citizenship to Non South Africans, dated March 2019

Home Affairs

5.    Report of the Portfolio Committee on Home Affairs Inquiry on State Capture in Granting of Citizenship to Non South Africans, dated March 2019

 

1. Overview of Committee Inquiry

In a letter dated 15 June 2017 the House Chairperson for Committees, the Hon. Mr. CT Frolick, referred to the Portfolio Committee on Home Affairs (PCHA) a request to investigate the allegations of state capture involving the (then former) Minister of Home Affairs in the granting of citizenship to non-South Africans. The letter specified that allegations are to be investigated within the parameters of the Rules of Parliament and where applicable findings to be reported to the National Assembly as a matter of urgency. Prior to this the Committee had already considered the matter, however subsequently, various communication and committee meetings ensued in significantly more details between the PCHA and the Department of Home Affairs (DHA). This report comprises phase one of the inquiry assessing information gathered, identifying further information needed and persons to be considered for interview by the PCHA in phase 2 prior to a final report. For purposes of this inquiry source documentation and sequence of committee meetings relevant to the project framework are as follows:

 

1. On 20 and 21 June 2017 the PCHA wrote to then Minister of Home Affairs, Ms HB Mkhize and then Minister of Finance, Mr. MKN Gigaba to attend the meeting on Gupta Naturalisation on 27 June.
2. On 22 June 2017, the DHA submitted a 9-page report signed by the Director-General (the DG) to the PCHA. The report is titled “Report on the granting of naturalization to the Gupta family.”
3. On 27 June 2017 PCHA meeting both current and former ministers of Home Affairs apologised for not attending are read and the DG, Mr. M Apleni, presented to the PCHA an overview of the legal and administrative processes with respect to applications for naturalization and the process followed with respect to the Gupta families, which is detailed in section 4.
   1. Mr. Ajay Gupta, his wife Mrs. Shivani Gupta, his mother Mrs. Angoori Gupta, and two sons Mr. Surya Kant Singhala and Mr. Kamal Kant Singhala applied for naturalisation as a family unit on 3 June 2013. Application as a group means that in the event a single member does not qualify for naturalization, none of the members in the rest of the group could receive naturalization.
   2. DHA Adjudication Committee initially rejected the request for naturalisation on 23 December 2014. A letter of rejection was issued, dated 22 January 2015, specifying that a regulatory requirement in terms of section 5(1)(b)(4) of the South African Citizenship Act, 2010 (No. 17 of 2010) as amended requires that any person who lodges an application should not have been absent from the Republic for a period of more than 90 days in any year during the 5-year period of ordinary residence immediately preceding the date of application for naturalization.
   3. On 27 May 2015, a submission to the Minister of Home Affairs, Mr. MKN Gigaba, in support of early naturalisation of Mr. Ajay Gupta and family was signed by the former Deputy Director-General for Civic Services Mr. V Mkhize and the DG Apleni.
   4. On 30 May 2015, the Minister approved the submission for early naturalisation in terms of section 5(9)(a) of the South African Citizenship Act.  
   5. However, since India does not permit dual citizenship, Mr. Ajay Gupta declined to renounce his Indian citizenship and consequently he could not be naturalized as a South African citizen.

 

1. On 3 August 2017, the Chairperson of PCHA received a letter enclosing a submission from the Organisation Undoing Tax Abuse (OUTA) containing an extensive report on state capture on the 28th of June 2017 titled "No room to hide: A President caught in the act” from Deputy Speaker of the National Assembly Tsenoli.  The Gupta emails referred to in the report are said to implicate misconduct on the part of Mr. MKN Gigaba (Gigaba), Mr. Rajesh Gupta (Tony Gupta), Mr. Ashu Chawla (Chawla) and Mr. Gideon Cornelius Christians (Christians). The leaked emails and a summary affidavit relating to the Guptas and Home Affairs are also included.
2. On 11 August 2017, the DHA tabled in Parliament the outstanding list of person’s granted early naturalisation in 2013, 2014, 2016 and 2017 (none in 2015) as required by section 5(9)(a) of the Citizenship Act.
3. On 8 September 2017: PCHA sent a letter to the DHA requesting evidence of the Gupta family’s investments and charitable contributions.
4. On 7 February 2018, the Department submitted 97 pages of support documents responding to a request for further information. The document titled “Evidence of Gupta family investments and charitable contributions in support of the naturalisation of the Gupta family, submitted as per request of the Portfolio Committee on Home Affairs” include several annexures:

• Annex 1: Evidence of sponsorship of two schools in the North West Province, through the 'Walk the talk school shoe campaign' - Odi Primary School and Tebogo Primary School, in 2013, to the value of R12 000.
• Annex 2: Evidence of renovations (painting of classrooms) at Chaneng Primary School, in 2014, amounting to R8000.
• Annex 3: Evidence of 15 computers given to Molelwaneng Primary School, in 2013, for use by the school's learners.
• Annex 4: Shows sponsorship for 75 schools from local communities - Sundown (cash prizes and school sports kit), in 2013.
• Annex 5: Confirms employment evidence from the Department of Labour I UIF.
• Annex 6: Certificates from Companies and Intellectual Property Commission (for 2013, 2014 & 2006) issued to Oakbay Investments.
• Annex 7: Letter listing companies under Oakbay Investments.

 

1. A signed letter dated 26 February 2018 on an Oakbay letterhead addressed to the Home Affairs DG headed: “Re: Request for further clarity on submitted documents” is submitted to PCHA with clearer details of social investments to schools in North West.
2. On 27 February 2018, a motion was seconded for the PCHA to solicit the support of the parliamentary research and legal services to engage with the documentation submitted to the committee.
3. On 6 March 2018, re-appointed Minister of Home Affairs, Mr. MKN Gigaba, presented to the Committee on early Naturalisation. He gave details of the naturalisation process followed by the Gupta family, and the technical reasons for rejections, such as applying as a family and not individually, or not renouncing their Indian citizenship as detailed in section 4. He emphasized that applications for documents had to be directed to the DHA, and not the Minister’s office. Appeals could be sent to the Minister, but they would be forwarded to the relevant official with an instruction to review the application along with the appeal, and advise the Minister if there was any basis either to uphold the decision initially made, or to set it aside. A memorandum would then be prepared and submitted to the Minister, advising him whether to uphold the initial decision or not. There were many such cases, and the Gupta issue had been no different to other appeals which the Minister had to deal with.
4. On 13 March 2018, the PCHA meeting resolved that private emails now in the public domain indirectly relating to the inquiry would be distributed to members.  A revised terms of reference for the inquiry was drafted by the Research Unit for PCHA input but consensus was not reached on the matter. The relevant emails were distributed to members of the PCHA.
5. On 15 March 2018 letters are sent to DHA by PCHA staff, requesting additional information on other Gupta family members and another letter was drafted pending signature from Chairperson to the Department of Education Nationally and in the North West as well as the Johannesburg Stock Exchange.
6. On 22 March 2018, 21 pages of publically leaked emails relating Home Affairs matters to Gupta associates are (were) forwarded to PCHA members. Documented are correspondences in April 2015 between Mr. Ashu Chawla (former CEO of Sahara Computers) and advisor to Minister Malusi Gigaba‚ Mr. Thamsanqa Msomi‚ to his private email address asking for assistance for visas for “clients”. Mr. Msomi was Mr. Gigaba’s chief of staff while he was public enterprises minister‚ later becoming his legal advisor as Home Affairs Minister and appointed to board of Denel 2015 -2017.

Also in the emails Mr. Chawla contacted other DHA and Presidency officials related to the appointment of Home Affairs staff at the Indian at the South African Consulate/High Commission in Delhi and Mumbai. Also requested was the correcting of blocked ID numbers and to expedite various visa requests which could otherwise have taken time to be issued, had the normal processes been followed. In certain instances, the email trail shows Mr. Chawla making demands for visas to be issued in the same day.

1. In a meeting of the PCHA on 27 March 2018, the Committee decided to broaden the scope of the investigation into the broader process of naturalization of the entire Gupta family (i.e. not only early naturalization) as well as the due process followed in naturalization in general since the last effected amendments to the Citizenship Act (No. 88 of 1995) as per the related regulations of 28 December 2012.

 

1. On 28 March 2018, the PCHA wrote a letter to the DHA requesting information on the other seven Gupta family members that have South African Citizenship: Mr. Atul K Gupta, Cetali Gupta, Mr. Rajesh K Gupta, Arti Gupta, Mr. Srikant Singhala and Sashank Singala (ID numbers disclosed). The Committee also requested a list of all persons granted naturalisation in the 5 preceding years with the dates of application and decisions as well as a copy of the Citizenship Standard Operating Procedures.
2. On 10 April 2018, the DHA provided the following information as requested:

Annex 2: All the details of the citizenship applications of the additional Gupta 6 family members noting that normal permanent residence requirements for naturalisation were met and thus confirmation of investments were not needed.

Annex 3: A list of persons who were granted naturalisation for the past five years - 2013/14 to 2017/18 financial years. The DG indicated that the Register does not show dates of application, however, it shows dates of approval and that complete individual files would need to be retrieved manually, a process requiring ample time to deal with 5600 files.

Annex 4: A copy of Citizenship Standard Operating Procedures that were implemented after the 2016 amendment to legislation.

1. In a meeting of PCHA on 30 May 2018, an update on progress made on Phase 1 of the inquiry was presented by PCHA support staff. Delays in the initial timelines of terms of reference of the inquiry were reported in large part due to the PCHA being without a full time Chairperson and thus inability to procure additional funding for staff to conduct interviews with DHA staff in Pretoria. There were also delays in getting information from the North West Department of Education on donations from Oakbay in part due to the Province being under administration. The Committee resolved to write to the Minister and if necessary summons the relevant informants. The Committee advised that a report on the information sourced be presented to the PCHA in August 2018 after the recess period.
2. On 31 May 2018 the Chairperson of the PCHA wrote to the DHA requesting further information.
3. On 21 June 2018 the DHA responded with the requested information as follows:

• Annex 1: Civic Services Officials dealing with naturalisation application process - Head Office
• Annex 2: Civic Services Officials dealing with naturalisation application process - Front offices
• Annex 3: Civic Services Officials considering early naturalisation cases - Front Offices
• Annex 4: List of officials at Civic Services that handled Gupta files
• Annex 5: Branch: Civic Services organogram
• Annex 6: Immigration Services Officials dealing with the temporary residence permits
• Annex 7: Immigration Services Officials dealing with permanent residence permits
• Annex 8:  Officials in RSA diplomatic missions in India responsible for Immigration matters - From 2013 to 2018
• Annex 9: List of Adjudicators at Branch: Immigration Services - Head Office
• Annex 10: List of Managers at Branch: Immigration Services - Head Office

1. 11 September 2018 - The Committee finalised its preparations for the inquiry on the Gupta Family naturalisation meetings to take place on Wednesday 12 September and Thursday 13 September 2018. Members were provided with files, for reference during the inquiry. The Committee had written to the Indian Embassy requesting the confirmation of renunciation of Indian citizenship by the naturalised Gupta family members but no response had been received.  
2. 12 September 2018 - Inquiry Day 1: Identified informants were questioned by the Committee including: Mr. Rudie Heyneke - Lead on State Capture Organisation Undoing Tax Abuse (OUTA)

Mr. Jonas Lehare - North West Member of the Executive Council (MEC) for Education

Ms. Stephinah Semaswe - Head of Department (HOD), North West Education and Department

Mr. Jackie McKay - DHA Deputy Director General (DDG) Immigration Services

Mr. Vusi Mkhize - Former Deputy Director-General: Civic Services, DHA

1. 13 September 2018 - Inquiry Day 2: Identified informants were questioned by the Committee including:  Mr. Richard Sikakane - DHA Deputy Director: Citizenship and Travel Documents

Mr. Major Kobese - DHA Director: Appeals (Former Director Foreign office coordination

Mr. Gideon Cornelius Christians - DIRCO New Delhi First Secretary: Immigration and Civic Affairs

Mr. Malusi Gigaba - Then Minster of Home Affairs

Mr. Mkuseli Apleni - Former DG of DHA

1. 9 October 2018 - Inquiry Day 3: Identified informants were questioned by the Committee including: Mr. Ronald Steyn - Munich Consul (Immigration & Civic Affairs)

Ms Nkidi Mohoboko - Deputy Director General: Human Resource Management and Development;

Ms Charlotte Mocke - Chief Director, People Management;

Mr. Malusi Gigaba - Then Minister of Home Affairs

1. 12 March 2019 – Inquiry day 4: Identified informants were questioned by the Committee:

Mr. Ndifelani Donald Dombo.

1. 13 March 2019 - Discussion and adoption of Final Report.

2. Judicial Commission of Inquiry

Subsequent to the Inquiry initiated at Parliament, a Judicial Commission of Inquiry into State Capture, Corruption and Fraud in the Public Sector Including Organs of State (Commission) was appointed by the President of the Republic of South Africa in terms of section 84(2)(f) of the Constitution of the Republic of South Africa by way of Proclamation No 3 of 2018 published in the Government Gazette of 25 January 2018 (Government No 41436).

The terms of reference of the Commission appear as a Schedule to the Proclamation. In terms of section 1 of the Commissions Act, 1947 (Act No 8 of 1947), the President declared the provisions of that Act applicable with reference to the Commission and made regulations applicable to the Commission. The regulations appear to be in line with recommendations made by former Public Protector Thuli Madonsela in the State of Capture Report including that the Chief Justice Mogoeng‚ rather than President Zuma‚ appoint the chair of the inquiry. The Chief Justice, in turn appointed Deputy Chief Justice Raymond Zondo to lead the commission.[1]

Regulations of the Commission of Inquiry were published in Government Gazette No. 41436 of 9 February 2018 with an Amendment on 23 March 2018. The regulations give the Commission the legal competence to conduct the investigation‚ including the power of the chairperson to subpoena witnesses and of search and seizure. The PCHA on the request of the Commission submitted evidence it had gathered to the Commission in March 2018. The Commission was to submit its report and recommendations to the president within 180 days of the commencement of the commission which was 25 July 2018. Deputy Chief Justice Zondo had launched an urgent application to the High Court in Pretoria on 19 July 2018, asking for an order extending the 180 days within which the commission is required to complete its work. The court ruled that the extension be granted for a further 24 months calculated from 1 March 2018.

3. Acts, Regulations and Standard Operating Procedures

 

Naturalisation is regulated by both Immigration and Civic functions within the DHA. This is primarily done through the Immigration Act (Act 13 of 2002 as amended) together with the published 2014 Immigration Regulations, as well as the Citizenship Act (Act 88 of 1995 as Amended 2010) and related 2013 Regulations.

 

Immigration Act, 2002 and Immigration Regulations, 2014.

Foreign nationals who wish to come to the Republic of South Africa (Republic) must apply for a visa, formerly called a temporary residence permit, in their countries of origin. These include visitors, study, medical, business, work, relative or spousal visas. The visa, by its definition, is for a short-term visit up to 3 months and long-term visit up to 5 years, with the exception of a multi­entry visa which can be up to 10 years with each visit not exceeding 90 days and issued to frequent travellers, for example, for tourism or business purposes. A person requires a visa to legally enter and sojourn in the Republic and may be extended whilst in the Republic.

 

A foreign national who has been in the Republic on a visa for a period of 5 years qualifies to apply for a Permanent Residence Permit. A Permanent Residence Permit holder has all the rights of a South African citizen, except for the right to vote.

 

The application and adjudication of temporary visas and permits is managed within the Immigration Services Branch of the Department of Home Affairs.

 

The granting of temporary visas or permanent residence permits requires foreign nationals to meet the criteria set out per visa/permit type. However, in the event an applicant cannot meet any of the requirements, he or she can apply for a waiver of the prescribed requirement, which may be approved by the Minister in terms of Section 31(2)(c) of the Immigration Act, 2002.

 

For instance, in terms of the Immigration Regulations, a foreign national may invest in businesses of R5 million and above, but at times requests are received wherein a person is unable to provide the prescribed amount, in such circumstances, the Minister is then approached to grant a waiver.

 

If the applicant is not happy with the outcome, in terms of the immigration legislation, there is an internal remedy, which is an appeal. If the applicant is not satisfied with the outcome of the appeal, the applicant may resort to a judicial review.

 

Once granted a permanent residence permit an applicant is issued a South African ID book, with a differentiation of non-citizen. This affords the permit-holder citizen rights except the right to vote.

 

Civic services legislation

Naturalisation of a foreign national who has a permanent residence permit, and has completed 5 years in South Africa, qualifies to apply for naturalization in terms of the Citizenship Act, 1995 as amended in 2010. In terms of Section 5 of this Act, a person will qualify for naturalisation:

 

1. He or she is not a minor,
2. He or she has been admitted to the Republic for permanent residence,
3. He or she is ordinarily resident in the Republic and that he or she has been resident for a continuous period of not less than 5 years immediately preceding the date of his or her application. (Regulations make provision for an applicant to be outside the country for a period not exceeding 90 days per year),
4. He or she is of good character,
5. He or she intends to reside in the Republic or to enter or to continue in the service of the Government of the Republic or of an international organisation of which the Government of the Republic is a member or of a person or association of persons resident or established in the Republic,
6. He or she is able to communicate in any one of the official languages of the Republic to the satisfaction of the Minister,
7. He or she has adequate knowledge of the responsibilities and privileges of South African citizenship,
8. He or she is a citizen of a country that allows dual citizenship provided that in the case where dual citizenship is not allowed by his or her country such person renounces citizenship of that country and furnishes the Minister with proof of such renunciation.

 

If the applicants for naturalisation have children or dependants (mother or father) they must apply as a family. An application for naturalisation can be adjudicated for an individual or for a family. It should be noted that if one family member does not qualify, then the whole application is unsuccessful.

 

In the event that an applicant does not meet fully the prescribed requirements set out in (b) above, that a person should ordinarily be resident in the Republic for a continuous period of not less than 5 years immediately preceding the date of his or her application, he or she may request the Minister to consider to waive the requirement based on exceptional circumstances in terms of Section 5(9)(a) of the Citizenship Act, 2010 (Act 17 of 2010).

 

It is important to note that the initial process of assessment involves preparation of a submission by an official who goes through the file and collates all information in the submission to be presented to the Naturalization Adjudication Committee, established by the Civic Services Branch, and chaired by the Chief Director: Back Office Status Services with other three Members of the Committee. The Committee ensures that the applicant complies with all the requirements. In terms of its role, the Committee either approves or rejects applications.

 

An applicant will submit an application to Civic Services as an individual or as a family by submitting Application of Naturalisation (DHA 63). The Directorate: Citizenship verifies the authenticity of the issued permanent residence certificate.

 

If the Naturalisation and Adjudication Committee approves the processes of issuance, the applicant must then sign a Declaration of Allegiance. Where the applicant's country does not allow dual citizenship, the applicant must submit a renunciation of citizenship letter from the country of origin.

 

Submission of above-stated documents would lead to changing of identity number from permanent residence identity number to a citizen identity number which provides for all the rights of citizens, including the right to vote. Failure to submit a signed Declaration of Allegiance or renunciation letter would lead to the naturalisation not being issued.

 

There are detailed standard operating procedures which define the exact roles and responsibilities for staff at the local and national offices dealing with citizenship (2016) and Immigration permits. These roles specifically include the verification and compliance with requirements by officer receiving the application as well as quality assurance of the supporting documents by a supervisor/manager.

3. DHA permitting structure and officials

There are two main areas of competency within the DHA which both relate to concerns around state capture. These are Civic Services and Immigration Services. Of concern in civic services are the sections dealing with the allocation of Citizenship and Immigration Services as they relate to the provision of permits.

Civic Services under a Deputy Director General, carries out the Department’s core functions: granting rights and citizenship to eligible persons. Under this the Chief Directorate Status Services, maintains an accurate register of all citizens and immigrants who have acquired the right to permanent residence; registers births, deaths and marriages and provides travel and citizenship documents and determines and grants citizenship.[2] Information requested from the DHA in table 2 indicates the officials involved in the early Naturalisation process.

Gupta Applicant	Date of Motivation	Receipt of Motivation	Official Receiving motivation: application office	Official Receiving Motivation: head office	Official  preparing submission for Minister's consideration	Route list of signatures on submission to Minister
Kamal Kant Singhala	29/04/2015	B.Z Khoza	B.Z Khoza	S.M Ramokoka	D. Dombo	ZR Sikakane NN Ramashia SY Mkhize M Apleni MKN Gigaba
Surya Kant Singhala	29/04/2015
Shivani Gupta	29/04/2015
Ajay Kumar	29/04/2015
Angoori Gupta	29/04/2015

Table 2 - Section 5 (9)(A) Gupta Early Naturalisation[3]

 

4. Gupta Family and Associates Immigration and Citizenship process with Home Affairs[4]

For ease of reference in this section of the report, the Gupta family are presented in chronological order and are divided into three: Mr. Atul’s family; Mr. Rajesh’s family; and Mr. Ajay’s family.

Atul’s Family

Mr. Atul Kumar Gupta (49) is the middle of the three Gupta brothers and the first to have come to South Africa. In 1993, a 25-year-old Atul was sent to South Africa by his father, Mr. Shiv Kumar Gupta, to come and explore business opportunities in the country.

 

Table 1 - The organisational structure of the DHA[5] (relevant sections in red)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The following information is provided by DHA on 10 April 2018: Mr. Atul Kumar Gupta (born 14 June 1968, husband), Mrs Chetali Gupta (born 4 April 1970, wife), Singhala Srikant (born 4 August 1994, child) and Singhala Sashank (born 15 November 1995, child).  Mr. AK Gupta entered the Republic for short visits from 1994 to 1996. He applied for a work permit on 12 April 1995 at SA mission in New Delhi. The application was forwarded to Head Office in Pretoria and was received on 19 April 1995. The Work Permit was approved on 9 May 1995 for 6 months, valid until 9 November 1995. The family arrived in South Africa on 22 July 1995.

He applied for renewal of his work permit on 11 October 1995 at the Randburg Office and the application was rejected on 16 November 1995. He was ordered to leave the country on or before 28 December 1995.

He then appealed against the decision on 6 December 1995 at the Randburg Office. On reconsideration it was approved for six months up to 12 June 1996.

He and his family applied for Permanent Residence Permits on 22 April 1996 and their applications were approved by the Immigration Selection Board on 30 October 1996 for the category of own business (including his wife Mrs Chetali and children - Srikant Singhala and Sashank Singala). The Atul family applied for Certificates of naturalization on 2 July 2002 at the Home Affairs Randburg Office and the naturalization certificates were issued on 30 October 2002 at the Randburg Office.

Rajesh’s Family

DHA on 10 April 2018 indicated as follows: Mr. Rajesh Kumar Gupta (main applicant, husband, born 5 August 1972), Mrs Gupta Arti (wife, born 24 October 1977) and Singhala Shubhangi (child, born 5 November 1997).[6]

Mr. Rajesh Kumar Gupta entered the Republic for short visits from 1996 to 1998. The date of entry on his work permit was 17 June 1998 valid until 21 April 1999. He applied for an extension of his work permit and conversion to business permit in May 2000 which was approved on 29 August 2000 until 29 August 2001 subject to him submitting audited financial statements and it was issued valid until 2 September 2003.

He came with his wife (Arti) and child (Shubhangi). The wife was admitted into the Republic to accompany her husband and the child to accompany parents.

He and his family applied for Permanent Residence Permits in New Delhi and his application was forwarded to Head Office and received on 2 February 2000. The Permanent Residence Permit was approved on 27 October 2000 with the condition to conduct own business.

They applied for certificates of naturalisation on 07 February 2006 at the Alexandra Office in Sandton. After completion of 5 years (26 October 2005), complying with the provisions of the Act. The applications were approved on 17 July 2006 (after 5 months) and naturalisation certificates were issued on 21 July 2006.

Ajay’s Family

A report submitted by the DG of DHA to the PCHA on 22 June 2017 on the granting of early naturalisation to members of the Gupta family reported as follows - A request for exemption to ordinary residence requirements as stipulated in Section 5(9)(a) of the Citizenship Act was refused for these Gupta family members: Mr. Ajay Gupta (born 8 February 1966, applicant/ husband), Mrs Shivani Gupta (born 10 May 1970, wife), Mrs Angoori Gupta (born 30 December 1945, mother), Mr. Kamal Singhala (born 25 October 1992, son) and Mr. Surya Singhala (born 10 March 1995, son).

Mrs Angoori Gupta (Mother) applied for and was granted a visa (Temporary Residence Permit/TRP) dated 1995/12/28 and another one dated 1997. This means that she first arrived in the country in 1995. Furthermore, she applied for another TRP based on family re-union whilst in New Delhi, in 2001/01/08. According to DHA records, Mrs A Gupta visited South Africa for short periods lasting up to about 6 months at a time.  She applied for a Permanent Residence Permit which was approved on 10 March 2003 after 8 years from the granting of the initial TRP in 1995.

Thereafter Mrs Gupta applied for naturalization on 3 June 2013 as part of the family, which was 10 years since she was granted a Temporary Residence Permit, as against a requirement of 5 years. Her application was rejected after adjudication by the adjudication Committee on 23/12/2014 (as per an annex C accompanying the DHA report) as per the refusal letter dated 22/01/2015, due to the fact that in the 5 years preceding her application, she was outside the country for a period exceeding the prescribed 90 days per year, by 18 days in the last year, as shown below:

 

• Year 1: 2009/07/29 - 2010/07/29 (abroad 0 days)
• Year 2: 2010/07/29 - 2011/07/29 (abroad 0 days)
• Year 3: 2011/07/29 - 2012/07/29 (abroad 0 days)
• Year 4: 2012/07/29 - 2013/07/29 (abroad 0 days)
• Year 5: 2013/07/29 - 2014/07/29 (abroad 3 months 18 days)

Mr. Ajay Gupta (1966/02/05) initially came to South Africa on a Work Permit as an employee of SAHARA granted for the following periods:

• 2000/07/21 until 2001/04/05
• 2001/05/30 until 2002/06/05
• 2002/06/07 until 2005/05/13
• 2005/02/28 until 2008/02/20

Mr. Ajay Gupta applied for a permanent residence permit which was issued to him on 18/01/2008, after 8 years in South Africa, as against a requirement of five years.

Thereafter Mr. Ajay Gupta applied for naturalization on 3 June 2013 as part of the family, which was the required 5 years since he was granted a Permanent Residence Permit, in compliance with the requirement of 5 years. Mr. Ajay Gupta's period of residence in South Africa is as follows:

• Year 1: 2008/06/03 - 2009/06/03 (Abroad 16 days)
• Year 2: 2009/06/03 - 2010/06/03 (Abroad 2 months 10 days)
• Year 3: 2010/06/03 - 2011/06/03 (Abroad 1 month 28 days)
• Year 4: 2011/06/03 - 2012/06/03 (Abroad 2 months 5 days)
• Year 5: 2012/06/03 - 2013/06/03 (Abroad 1 month 18 days)

Mr. Ajay Gupta complied with the ordinary residence periods however, his application was rejected after adjudication by the Committee on 23/12/2014 as per the refusal letter dated 22/01/2015  due to the fact that other members of the family did not meet the requirements.

Mrs Shivani Gupta (wife) applied and obtained a spousal permit on 31 May 2001, valid until 30 May 2002. A further spousal visa was issued on 24 February 2005 until 22 February 2008. Another spousal visa was issued valid until 31 December 2010, after which a final extension was granted valid until 21 December 2015. Mrs Shivani Gupta applied for a permanent residence permit which was approved on 7 June 2012, after 11 years in South Africa, as against a requirement of 5 years.

Mrs Shivani Gupta applied for naturalization on 3 June 2013 as part of the family, which was a year since she was granted a permanent residence permit, and thus not in compliance with the requirement of 5 years. Her application was rejected after adjudication by the Committee on 23/12/2014  as per the refusal letter dated 22101/2015, due to the fact that she did not complete 5 years preceding her application as shown below:

• Year 1: 2012/06/07 - 2012/07/17 (Abroad 24 days)
• Year 2: 2012/07/17 - 2013/07/17 (Abroad 1 month 20 days)
• Year 3: 2013/07/17 - 2014/07/17 (Abroad 1 month 12 days)

The reason for rejection was that she was short of 2 years, thus the Gupta family was advised to re-apply in December 2017.

Mr. Kamal Kant Singhala (son) applied and was granted a visa (Temporary Residence Permit) dated 1995/12/28 then applied for a permanent residence permit which was approved on 18 January 2008 after 12 years, as against a requirement of 5 years.

Thereafter Mr. Kamal Kant Singhala applied for naturalization on 3 June 2013 as part of the family, which was 5 years since he was granted a Permanent Residence Permit, in compliance with the requirement of 5 years. Mr. Kamal Kant Singhala's period of residence in South Africa is as follows:

• Year 1: 2009/07/29 - 2010/07/29 (Abroad 30 days)
• Year 2: 2010/07/17 - 2011/07/17 (Abroad 19 days)
• Year 3: 2011/07/17 -2012/07/17 (Abroad 44 days)
• Year 4: 2012/07/17 -2013/07/17 (Abroad 0 days)
• Year 5:2013/07114 - 2014/07/14 (Abroad 15 days)

As reflected above, Mr. Kamal Kant Singhala complied with the ordinary residence periods however, his application was rejected after adjudication by the Committee on 23/12/2014 as per the refusal letter dated 22/01/2015, due to the fact that other members of the family did not meet the requirements.

Mr. Surya Kant Singhala (son) applied and was granted a visa (Temporary Residence Permit) dated 1995/12/28. He then applied for a permanent residence permit which was approved on 18 January 2008 after 12 years, as against a requirement of 5 years.

Thereafter Mr. Surya Kant Singhala applied for naturalization on 3 June 2013 as part of the family, which was 5 years since he was granted a permanent residence permit, in compliance with the requirement of 5 years. Mr. Surya Kant Singhala's period of residence in South Africa is as follows:

• Year 1: 2009/07/29 - 2010/07/29 - (Abroad 20 days)
• Year 2: 2010/07/17 - 2011/07/17 - (Abroad 1 month 8 days)
• Year 3: 2011/07/17 - 2012/07/17 (Abroad 2 months 10 days)
• Year 4: 2012/07/17 - 2013/07/17 (Abroad 17 days)
• Year 5: 2013/07/17- 2014/07/17 (Abroad 1 month 26 days)

As reflected above, Mr. Surya Kant Singhala complied with the ordinary residence periods however, his application was rejected after adjudication by the Adjudication Committee on 23/12/2014 as per the refusal letter dated 22/01/2015, due to the fact that other members of the family did not meet the requirements.

Noted is that that "Singhala" used as a surname for the two sons, was explained as another way of denoting "Gupta" in India.

On 27 May 2015, a submission to the Minister of Home Affairs, Mr. MKN Gigaba, in support of early naturalisation of Mr. Ajay Gupta, his wife, mother and two sons and was signed by the former Deputy Director-General for Civic Services Mr. V Mkhize and the DG Apleni. It is noted that the application motication was made by Mr. Ashe Chawla, a Gupta employee and only included the names of Ajay, his Wife, Shivani and Mother, Angoori. Forms for naturalisation of this two children Surya and Kamal also formed part of the application.

 

On 30 May 2015, the Minister approved the submission for early naturalisation in terms of section 5(9)(a) of the South African Citizenship Act.   However, since India does not permit dual citizenship, Mr. Ajay Gupta declined to renounce his Indian citizenship and consequently he could not be naturalized as a South African citizen.

 

Consideration of exceptional circumstances

When the Gupta family was informed of their unsuccessful application as per letter dated 22 January 2015,  particularly informing them that as a statutory requirement, any person who lodges an application should not have been absent from the Republic for a period of more than 90 days in any year during the five year period of ordinary residence immediately preceding the date of application for naturalisation; they exercised their right to approach the Minister for him to consider exceptional circumstances as per the powers vested in the Minister in terms of Section 5(9)(a) of the Citizenship Amendment Act, 2010, as per the letter dated 29 April 2015.

In this regard, as explained above, it was Mrs Angoori Gupta (mother) and Mrs Shivani Gupta (wife) who did not meet the requirement as Mr. Ajay Gupta and the two sons met the requirements of physical residence in the Republic, with the proviso that they can be outside the Republic for not longer than 90 days in a year during the 5-year period of ordinary residence preceding the date of application for naturalisation.

On receipt of the letter dated 29 April 2015 from the family requesting the Minister to consider granting early naturalisation due to exceptional circumstances, the Civic Services Branch prepared a submission for the Minister's approval of granting early naturalisation based on the motivation, during the month of May 2015.

The Department in recommending for the approval of the early naturalisation, considered the family's business presence and investments in the Republic. Hence the Minister granted approval on 30 May 2015.

However, it is important to note that the exceptional circumstances were only in respect of the mother and the wife.

After the approval was granted, because India does not accept dual citizenship, the family had to provide proof of renunciation of Indian citizenship. Mr. Ajay Gupta did not provide proof of renunciation. As a result, his naturalisation was not effected and thus he remains a permanent resident permit holder. Naturalisation was effected after receiving renunciation letters for the mother, the wife and the two sons, Mr. Kamal Kant Singhala and Mr. Surya Kant Singhala.

The Department received a Parliamentary Question No. 2146 from the National Assembly, due for publication on 14 October 2016, as raised by Honourable MP Hoosen, asking: "With reference to his reply to question 1007 on 25 April 2016, what are the full details of the exceptional circumstances under which [the Minister] granted citizenship to certain persons [in the Gupta family]". The Department replied accordingly, explaining the exceptional circumstances for granting citizenship to the Gupta family which are dealt with in Section 4.

In terms of Section 5(9)(b) of the Citizenship Act, the Department is required to table names of those granted SA citizenship by naturalisation to Parliament. The last report was submitted in 2012. Since 2013, the Department naturalised four families and five individuals as per the attached document. It was admitted as an omission on the part of the Department not to have tabled the names which were subsequently tabled on 11 August 2017.

5. Gupta family related companies

 

According to the memorandum recommending the early naturalisation and approved by Minister Gigaba, both the South African Revenue Service and Companies and Intellectual Property Commission were consulted on the investment claims by the family. The following information on shares held is in the application:

 

• Westdawn Investment (Pty) Limited T A JIC Mining Services with 54% shares.
• Tegeta Exploration and Resources (Pty) Ltd: 48% share directly and 30% shares through associate.
• Tegeta Resource: 25% share directly and 45% share though associate.
• Blackedge Exploration (Pty) Limited: Oakbay Holds 55% shares.
• Oakbay Resources and Energy owns 74% on Shiva Uranium Ltd.
• Investments in Media and Broadcast (The New Age where they own 93% and ANN7).

 

It should be noted that the overall investment amount of R25 billion in the early naturalisation application is not verified nor the charity to schools and employment numbers.

 

According to a submission from the Department of Labour on 23 October 2017 and requested by the Department of Home Affairs on 17 October 2017; the 8 companies associated with the Gupta family have declared numbers of employees in excess of the originally stated 7000 employees stated in the early naturalisation applications. As per the Table 3 below employees amounted to close to 17 000.

 

Table 3: Gupta Company Employment numbers from Department of Labour

 

UIF REFERENCE    NUMBER	REGISTRATION NAME	TRADE NAME	NUMBER OF EMPLOYEES DECLARED
1667537/3	Westdawn Investments	JIC Mining Services	12 434
0102528/4	Migration Proxy Value	Shiva Uranium Limited	4 106
2008987/9	TNA Media Pty Ltd	TNA Media Pty Ltd	230
0520673/4	Sahara Computers Pty Ltd	Sahara Computers Pty Ltd	164
2042258/2	Blackedge Exploration Pty Ltd	Blackedge Exploration	50
2054533/0	Oakbay Investments Pty Ltd	Oakbay Investment Pty Ltd	1
1871505/9	Tegeta Exploration & Resources Pty Ltd	Tegeta Exploration & Resources	1
1860219/6	Islandsite Investments One Hundred And Eighty Pty Ltd	Islandsite Investments One Hundred And Eighty Pty Ltd	1
Total			16 987

 

Sundaram Affidavit

Further information on TNA Media, now in the public domain, relate the Gupta initiated news channel ANN7, to various DHA permitting irregularities. In the book Indentured – Behind the Scenes at Gupta TV, Mr. Rajesh Sundaram reports of flagrant disregard for the law by flouting work visa regulations and exploiting young black South Africans and migrant Indian workers as but a few of the he encountered as part of a broader web of deceit and political manoeuvring. Mr. Sundaram has been a veteran journalist for 23 years and holds a degree in Journalism from the University of Delhi, and has worked for top Indian and international media houses, including India Today Group, NDTV and Al Jazeera.[7]

Mr. Sundaram’s story emerged after he was recruited with a small team of Indian broadcast professionals and South African interns to launch the television news channel ANN7 under extremely tight deadlines under Mr. Atul Gupta and his associates. This resulted in Mr. Sundaram quitting his job in a public dispute, while his life was threatened and his health deteriorated.

In affidavit from Mr. Sundaram, directed to the PCHA he recounts events that took place during the period 3 June and 2 September 2013, when employed at Gupta-owned Infinity Media (Trading Name TNA Media). These include:

• The Gupta family created a joint venture with Mr. Laxmi Goel (Indian national) and Mr. Duduzani Zuma who owned 30% of company.

• Contraventions of the South African labour and visa regulations, in that despite the availability of sufficiently qualified South African candidates across all departments at ANN7, Mr. Atul Gupta and Laxmi Goel insisted on hiring staff from India in order to:

 

1. Exploit working hours without fear of Indian workers complaining to authorities.
2. Indian citizens would accept lower salaries and benefits.

 

• Claims that large number of employees would enter SA on tourism visas - with the option of converting these to work permits at a later stage. Further alleges that Mr. Atul Gupta indicated that former President Zuma assured him that a number of visa would be issued by Home Affairs without “fussing” about norms required.
• Claims further that labourers were brought in on tourist visas to assemble the ANN7 studio and that they had to live on the construction site in Midrand under sub-human conditions. The labourers were paid in Indian Rupees in India. It alleges that Mr. Chawla coordinated with the President’s Office and Home Affairs to ensure visas were speedily issued. Many people stayed on tourist visas and paid small fine at passport control when exiting country, which was later reimbursed to them.
• A number of people who overstayed on tourism visas were issued work permits within weeks.
• Improper relationship between former President Zuma and Mr. Atul and Ajay Gupta through the Oakbay Company. Alleges that Mr. Zuma used his position to benefit the Oakbay media venture, of which his son was a 30% shareholder. These include advertising deals (IEC advertising budget specifically mentioned), sponsorship and attendance of New Age breakfasts – which allegedly generated “insane profits”.
• He made a formal complaint about these experiences to the DHA immediately on his return to India via email. To date, he has not received any communication from the DHA since he lodged these complaints in 2013. Attached to the affidavit are copies of 3 emails sent to the DHA senior members of management in 2013. In the emails to DHA, he makes allegations of visa violations and destruction of evidence by Mr. Atul Gupta and Laxmi Goel.

 

In his email, claims that employees of Infinity Media used business visas to work at ANN7 and these were renewed serval times. Emails were sent to senior DHA officials on the dates listed below:

 

1. Email dated 4 September 2013 to Mr. Apleni
2. Email dated 6 September 2013 to Mr. Apleni
3. Email dated 9 October 2013 to Mr. Apleni. CC’d following senior DHA staff who held the following positions at the time (2013):

 

• (former DG of DHA)
• (DDG Immigration Services)
• (Former DDG: Counter Corruption and Security Services)
• (Former DDG: Finance and Supply Chain Management)
• (Former DDG Human Resources)
• (deceased former DDG Communication)

6. Schools receiving donations

In terms of Social Investment to support their application for early naturalisation, 76 schools in the North West Province were said to have received donations. The Parliament Research Unit attempted to gather evidence of this having occurred in the absence of such being done by the DHA. In the absence of responses on other types of donations (6.2), the school principals were contacted telephonically in the absence of responses to questionnaires – as this represented a significantly smaller number of respondents.

6.1 Sporting equipment

The response rate for schools identified as having received donations has been very slow to date. The North West Department of Education was first contacted to verify details of schools listed on 25 April 2018, but did not solicit a response. This was followed up with another communication on 31 May 2018, with a response in July 2018.

A total of 76(77) schools were listed as having received sporting equipment donations from the Oakbay group. The Department provided details for 68 schools. One of the schools, Reatile Middle, was closed during the rationalisation process in the province, while the email address provided for 1 school was incorrect, and numerous telephone numbers were outdated and incorrect. To date, a total of only 11 schools responded, resulting in response rate of 16.7%. These responses are summarised below.

It should be noted that the information received to date cannot be regarded as a representative sample, as the response rate was too low.  However, a total of 5 out of the 11 schools (45.5%) indicated that they never received a donation from the Oakbay group. Some of the schools signed several acknowledgements of receipt, instead of one: i.e. for intermediate, senior and FET phases, and these were signed by different individuals.

Table 3: School Donation Evidence Requested

Name	Donation received?	Donation	How the school was selected for donation?
Ithumeleng Secondary	Yes	R1000 for 1 learner. 15 soccer cones. 15 hula hoops	School was requested to participate in competition for Gupta wedding invitations.
Bobuantswa Primary	Yes	15 bean bags 10 green low cones 10 red low cones 10 orange low cones 10 white low cones 10 yellow low cones 2 orange disk cones (big) 48 marker cones set 5 mitre whistle and lanyard 2 mitre speed ball size 5 7 mitre lynx size 5 2 mitre netball ball (green) size 5 8 mitre pivot netball size 5 (pink) 10 yellow mitre bip XL Juniour 14 yellow mitre bip  Juniour 10 blue mitre bip XL Juniour 5 green hula hops 5 red hula hops 5 blue hula hops 1 plastic mini soccer set 1 ball, l pump, 8 ground plastic poles 2 all weather net , light Weight frame 78cm x 68cn x 53cm R1000 for the best learner	Selected by departmental officials from Area Office level.
Rakoko Secondary	No
Nkobong Secondary	No
Makuka Secondary	Yes	R1000 consolation prize for 1 learner who participated in a wedding invitation card design. Hula hoops – quantity not specified Rugby balls – quantity not specified Mini soccer balls – quantity not specified Soccer bibs  – quantity not specified	Geography teacher was informed at geography meeting in 2013 about wedding card invitation.
Mogono Primary	Yes	15 Bean bag 10 green low cones 10 red low cones 10 orange low cones 10 yellow low cones 10 white low cones 2 orange disk cones (big) 48 orange marker cone set 5 mitre whistle and lanyard 2 mitre speedball size 5 7 mitre Lynx (size 5) 2 mitre netball (size 5) green 8 mitre pivot netball (size 5) pink 10 yellow mitre bibs 14 red mitre bibs 10 blue mitre bibs 5 red hula hops 5 green hula hops 5 blue hula hops 1 plastic mini twin soccer set 1 ball, 1 pump, 8 ground plastic poles 2 all-weather nets, light weight frame (78cm x 68cm x 53cm) Envelop contains R1000-00 for the best learner (Rankoko Aobakwe)
Ratheo Primary	No
Reuben Moraneng Primary	No
Rasimone  Primary	Yes	Soccer T Shirts Soccer trousers Soccer boots Shin Guard Whistles Travelling bags Soccer kit bags	Through a circular from the donor to enter competition for Gupta wedding invitation. Also received sporting equipment as part on entering competition.
Mperebere Primary	Yes	A R1000 cash payment which was awarded to a grade 7 learner	Prize awarded at Sundown Ranch Hotel.   It is alleged that an official from Home Affairs Department visited the school to collect data on this donation.
11. Chaneng Primary	No		It is alleged that an official from the Department of Home Affairs visited the school on 10 May 2018 to collect information on the donation.

 

Of the 6 responses received from schools with donations, schools provided varying levels of detail. Some of the schools did not indicate sporting equipment received. However, most of the schools link their donations to a competition for designing wedding invitations for the Gupta wedding held in 2013.  A consolation prize of R1000 was awarded to a learner for each of the participating schools. In addition, some of the schools received sporting equipment.

Schools were not informed about the competition in the same manner; some heard through official departmental communication and others through word of mouth. Also of note is that two of the schools indicated that a DHA official had visited the school to verify the donation although at what date is unclear. Mperebere primary also reported a visit from a “Home Affairs’ official in their questionnaire, however attempts to contact the school telephonically to confirm the date were unsuccessful. However, this issue requires further clarification with the Department of Home Affairs.

6.2 Other donations

Evidence submitted with respect to 15 computers donated to Molelwaneng primary school was disputed by the former principal, Mr. PW Mogotsi, on which behalf the letter of acknowledgment was signed.

Evidence submitted as relates to the painting of 4 classrooms at Chaneng primary school is partly refuted by the principal, Mr. SM Mmula. According to Mr. Mmula, only 2 classrooms were painted, and the school also never received donations for sporting equipment.

Evidence submitted with respect to the donation of 75 pairs of school shoes to learners at Tebogo primary school was confirmed by the principal, Mr. Lightfoot. Mr. Lightfoot indicated that the donation in totalled 85 pairs of shoes, on 16 November 2013. The donation as initiated after a visit from Hernic Ferrochrome, Tugela and Sisure Mining, accompanied by JIC in 2013.  In addition, another donation from Hernic Ferrochrome was made on the 19 February 2014 to launch a water project. The donation was two 5000 litre water tanks and a stand, as well as a borehole.

7. Gupta Leaked Emails Related to Home Affairs

An Affidavit received by the PCHA from the Organisation Undoing Tax Abuse (OUTA) via the Deputy Speaker to Parliament summarises the DHA related aspects of leaked emails. These were analysed in a broader report on State Capture titled "No room to hide: A President caught in the act”.[8] The emails were ostensibly retrieved from the server of SAHARA Computers Pty (Ltd). These Gupta emails substantiate allegations pertaining to state capture and have unveiled evidence of misconduct by the Gupta family and many high-ranking government officials. OUTA has access to and made available the emails and established the authenticity of such. What follows in this section is primarily from the summary Affidavit submitted by OUTA.

Amongst the Gupta emails were implications of misconduct on the part of Mr. MKN Gigaba (Gigaba), Mr. Rajesh "Tony" Gupta (Rajesh Gupta), Mr. Ashu Chawla (Chawla) and Mr. Gideon Cornelius Christians (Christians)

According to his curriculum vitae, Mr. Christians worked as the Second Secretary (Immigration and Civic Services) for the South African High Commission of New Delhi, India between February 2008 and March 2014. Prior to this, Mr. Christians worked in similar capacities in Cape Town, Cameroon and Mauritius and his duties included the facilitation of the prosecution of illegal foreigners.

On 19 September 2011, Mr. Christians (in his capacity as an employee of the Delhi South African High Commission - Immigration and Civic Services) sent an email to Mr. Chawla, the then CEO of Sahara Computers (Pty) Ltd, which stated "Ashu; Attached please find details of the coal." Christian's usage of Mr. Chawla's first name indicates some familiarity between the two (related email attached in submission).

On or about 8 November 2011, Mr. Christians emailed Mr. Chawla and one Mr. Miguel Dos Santos, notifying them that he had met with a "Mr. Gupta" on 7 December 2011 and discussed business relating to the sale and purchase of coal. This is presumed to be Mr. Rajesh Gupta as he was forwarded the email by Mr. Chawla. Mr. Christians further stated that he had been in contact with prospective buyers in China and that he would refer them to an identified client if they were able to match the specifications of coal contained within a coal purchase agreement of 2010, which he attached to the email. In summary, the agreement was between two unidentified parties and set out the terms and conditions for the sale of "Steam/ Thermal/ Non Coking Coal" for the purpose of importing coal to China. Finally, he advised them that a coal mine was up for sale in the Tete region of Mozambique (related email attached in submission). Again, the communications indicate some familiarity between Mr. Christians, Mr. Rajesh Gupta and Mr. Chawla in 2011 already.

On or about 11 June 2013, Mr. Chawla sent an email to Mr. Christians, asking him to help to finalise his wife and son's visa by "tomorrow". This is the first of many requests to expedite visas. Later that same day, Mr. Christians replied to the email, asking where they were landing, to which Mr. Chawla replied, "I am sure you not confused about that..." (related emails attached in submission).

On 20 June 2013, Mr. Chawla sent Mr. Christians another email requesting visas for eight more people, which he identified as "TV guys". (related email attached in submission).

On or about 21 June 2013, Mr. Chawla initiates a chain of emails with Mr. Christians regarding a two-year multiple entry business visa for one Tanvi Gupta. Mr. Chawla intended to apply for such a visa, with Mr. Christians' help, but misrepresented that the visa was for the purpose of business. In truth, Tanvi Gupta was coming to South Africa to get married to Varun Gupta. Mr. Chawla states outright that he intends to use the Sahara letter head to facilitate the false business visa and attaches a draft to this effect. Mr. Christians himself subsequently questions Mr. Chawla on this. (related email attached in submission).

On or about 17 July 2013, Mr. Chawla emailed Mr. Christians asking him to get a visa for "today''. He stated that the visas were required urgently because they were launching the TV station on 9 August and that he might be requesting more visas in a couple of days. Later that same day, Mr. Chawla sent Mr. Christians another email thanking him for "all the continuous support" (related email attached in submission).

On or about 8 August 2013, Mr. Chawla emails Christians a selection of Mini Coopers for sale in South Africa. The reason for the email is unclear but the nature of the relationship between the two indicates that this may well constitute a form of quid pro quo for the assistance rendered by Mr. Christians to Mr. Chawla and the Guptas (related email attached in submission).

On or about 13 August 2013, Mr. Chawla sent Mr. Christians two emails in which he requests help with more visas. In the first, Mr. Chawla says, "Brother, Please help. Thanks." In the second, he says, "Brother, One more. Thanks.” On or about 14 and 19 August 2017, Mr. Chawla sent two more emails, without any pleasantries, he only forwards the names and their respective passport numbers (related email attached in submission).

On or about 15 February 2014, Mr. Chawla forwarded Mr. Christians an email chain in which one Anant Sarkaria requests the assistance of Abhinav Shukla in removing his travel ban. Shukla subsequently emailed Mr. Chawla twice and in the second email he states that he was instructed to do so by Mr. Rajesh Gupta (related email attached in submission).

On or about 21 November 2014, Mr. Christians emails his CV to Mr. Chawla "as discussed ", expressing confusion as to why he needs it. On or about 11 December 2014, Mr. Chawla forwarded the CV to "Ronica" at Oakbay (Presumably Ronica Ragavan, then current CEO of Oakbay Ltd) (Related email attached in submission). The significance of these specific emails becomes apparent after reading later emails mentioned below. On or about 27 December 2014, Mr. Chawla sends Mr. Christians an email with the subject line: "4 Dubai visas". Although the attachments are not available, the descriptions of the attachments indicate that the visas for relatives of Mr. Christians were forwarded. (related email attached in submission).

On or about 12 February 2015, Mr. Chawla sent Mr. Christians the passports of various Gupta family members including Anil Kumar Gupta, his mother, wife, daughter and son in law (not Mr. Rajesh Gupta). It would seem that Mr. Christians may have assisted to facilitate the immigration of the Gupta family to South Africa. At the very least, it demonstrates improper influence by the Gupta family on the Department of Home Affairs (related email attached in submission).

On or about 6 October 2015, Mr. Siyamthanda Skota of the Ministry of Home Affairs sent a submission referring to instruction by Minister Gigaba in which he directed that one Ms Munyadziwa and Mr. Christians were to be transferred to Mumbai and New Delphi respectively. Mr. Christians' appointment was for a period of four years and was subject to him receiving a Top Secret Clearance at the same level of Assistant Director. Mr. Major Kobese, the Director: Foreign Office Coordination (FOC) and Support for the DHA, confirmed his receipt of the signed submission on 14 October 2015. A discussion soon developed between Mr. Kobese and Wesane Hlongwane, the Director: People's Acquisition (HR), over which Department was to provide "a background” for Mr. Christians, in respect of the clearance required. On or about 20 October 2015, Mr. Kobese stated that "this deployment was done outside the normal recruitment process." However, in another email on or about 21 October 2015, he also stated that the deployment of Mr. Christians was an instruction by the Minister and their role was to carry out that instruction.

Ultimately, on that very same day, Mr. Christians is "unofficially, provided with the email chain, which he then sends from his official government account, to his Gmail account, before sending it to Mr. Chawla, stating:

"Bhiya Someone sent this to me unofficially . . .. seems there is a fight with HR and FOC to issue the letter to me...The other issue is security clearance...Call me when you can."

It appears that Mr. Christians is contacting Mr. Chawla to ensure that matters are resolved in his favour instead of following formal government channels. This is an indication that Mr. Chawla and the Gupta family had, at the very least, a degree of influence over the affairs of the DHA and/or Mr. Christians and/or Mr. Gigaba (related email attached in submission).[9]

8. Legal concerns on application of policy

It is common cause that the Minister has the power, in law, to grant a certificate of naturalisation to a person who has not fulfilled the residential requirements under the Act. The Act is clear that such a power must only be exercised in “exceptional circumstances” and yet it does not define what those circumstances are. In this sense it is left to the Minister to determine what should constitute “exceptional circumstances”. However, it bears emphasising that a statutory power must only be exercised for the purpose for which it was given, not for an ulterior motive. In the abstract it is difficult to come to a conclusion either that the power was used incorrectly or correctly without affording the holder of that power an opportunity to explain his thought process in reaching his decision.

Our courts have had an occasion to consider the meaning of the phrase “exceptional circumstances” before albeit in different circumstances and facts. Legally there seems to be consensus that the phrase envisages “unusual or different, or markedly unusual or especially different” circumstances. From this it is clear that the legislature intended to make it more difficult for the Minister to invoke this power.

Although the existence of an investment is a matter of fact, whether or not that investment constitutes “exceptional circumstances” under the Act is an exercise of a value judgment. At any given point there are thousands of persons who invest in South Africa and it cannot be that all of them would be entitled to “early” naturalisation by virtue of their investments. This then suggests that the “exceptionalism” of any investment must lie in the extent/degree or rarity of the nature of the investment in question for it to trigger the exercise of this discretion by the Minister.

From the reading of the submission approved by the Minister for the naturalisation of the Gupta family it is difficult to make a determination as to what was considered “exceptional” in this instance. The submission merely confirms the fact of an investment without elaborating as to why this was considered exceptional to justify a departure from the ordinary prescripts of the law. This, however, is not sufficient to impute ulterior motive on the part of the Minister or Department unless there is additional evidence that definitively points to that direction and we have not come across any from the available information.

This is not to suggest that there is no circumstantial evidence that points to a pattern of manipulation of Home Affairs processes by the Gupta family in as far as the granting of visas to some of their employees. This is all revealed in the Gupta leaked emails which are now in the public domain and referred to above in this Report. Whether such manipulation specifically extended to the granting of the “early” naturalisation is a matter that may require further investigation.

9. Issues of concern to be raised in the phase two Inquiry

The following issues were raised as outstanding in Phase one of the inquiry to be raised in Phase two. Issues which were not addressed in the inquiry or uncovered concerns are raised as findings.

 

1. It took one month from the letter requesting for early naturalisation in April 2015 to when it was approved by the Minister in May 2015. In contrast, the DG reported to the Committee on 6 March 2018, that there were many cases where the DHA had been taken to court by other applicants, not because the decision had been rejected or an appeal was not successful, but because the DHA had delayed finalising the applications. The question to the Minister is what particular exceptional circumstances of the Gupta Family were such that their application was prioritised faster than other such early naturalisation applications?
2. On what permits did Mr. Atul and Mr. Rajesh Kumar Gupta initially enter South Africa between 1994 and 1998.  
3. Is there record of Mr. Rajesh Kumar and his family leaving the country between the expiry of his initial work permit on 21 April 1999 and the approval of the conversion to business permit on 29 August 2000?
4. On what conditions is it that Permanent Residence was approved in October 2000 for Mr. Rajesh Gupta and his family only 2 Months after his business permit was approved?
5. Mr. Rajesh Gupta’s work permit extension application (BI 1155 in August 2000) is extended and converted to business permit subject to the submission of audited financial statements and repatriation deposit. Were these ever received?
6. On what conditions is it that Permanent Residence was approved in 30 October 1996 for Mr. Atul Gupta and his family after only 1 year on two 6-month work visas?
7. Is four months from application for naturalisation to approval (July to November 2002) for Mr. Atul Gupta and family not considerably faster than the usual application time?
8. There is a gap of 2 months between the April 2001 expiry of Mr. Ajay Gupta’s first work permit and its renewal on 30 May 2001. What was he illegally in the country for this period or are there records of his departure and re-entry in to South Africa?
9. There is a three-year gap between the expiry on 30 May 2002 of the initial spousal permit granted to Mrs Shivani Gupta and next one granted on 2 February 2005. Was she in the country during this time and if so on what document?
10. What are the latest Immigration Permitting standard operating procedures and why could these not be provided to the PCHA. Are these distributed and explained to all immigration staff?
11. It took 5 months for the DHA to respond to the PCHA 2017 request for confirmation of investments and employment by Gupta family businesses. The long delay is attributed to the DG being on suspension during this period, however, had the DHA done the necessary due diligence in assessing the early naturalisation application, this information should have been readily available having already been verified and not only requested from the Department of Labour on 17 October 2017.
12. The question is why were the number of staff employed, and the overall investment by the applicant’s businesses were not verified by the adjudication Committees dealing with the early naturalisation application.
13. The apparent close relationship between Mr. Christians, reference to a Minister, Mr. Chawla and Mr. Rajesh Gupta should be investigated as it appears from the evidence above that Mr. Chawla and Mr. Rajesh Gupta didn't have to follow prescribed procedure and received preferential treatment from government officials. In return, it appears that Mr. Christians was rewarded for his assistance. It also appears that Mr. Rajesh Gupta may have had the ability to influence decisions taken by Mr. Gigaba and the reason therefor should be properly investigated.
14. Chaneng primary school indicated that they did not complete the Parliament questionnaire, as allegedly an official from the ‘DHA’ visited the school on 10 May 2018 to complete a questionnaire on the Gupta donations. They thus considered it a duplication. Attempts to contact the number provided of the official remain unanswered. Mperebere primary also indicated a visit from a “Home Affairs’ official who attempted to verify donations. The date of the visit could not be verified telephonically at this stage. Both schools, however, denied receipt of sporting equipment by the Oakbay and associated group of companies. This issue requires clarity from the DHA on who the official is and the timing of the visit, given the issue is currently before the Portfolio Committee and the Judicial Inquiry.
15. Why were the procedures of the Citizenship Act (Section 5(9)(b) not followed on time for tabling in Parliament, a list of those granted early naturalisation in 2013, 2014 and 2016?
16. Posts filled by workers brought from India at ANN7 were not all vacant for the six months. Why was this not checked by the DHA?
17. Is there record of Indian Workers being brought on tourism visas but being employed as construction workers by the Gupta’s?
18. It is alleged that ANN7 applied for intercompany transfer permits though they weren’t working for the same media company. Can this be checked?
19. Can evidence be provided of the reasons for the irregular appointment of Mr. Gideon Cornelius Christians at the South African High Commission in Delhi India?
20. Supporting documentation submitted to the DHA related to the Mr. Ajay Gupta’s early naturalisation application included the social responsibility donations to schools in the North West province. Evidence from schools suggests that in some instances, the donations may be overstated or incorrect. What is the administrative recourse such as in terms of Section 8 of the Citizenship Act in cases where incorrect or overstated information is submitted to support applications for naturalisation?
21. Can the DHA clarify why emails submitted in 2013 to several of its senior management by Mr. Sundaram, listing visa irregularities were not investigated or responded to?
22. Can the DHA provide a list of (1) all Indian nationals who applied for various visas under the Gupta related group of Companies to enter SA in the period 2013 to 2017, (2) what type of visas were issued (3) a list of visas that were subsequently renewed (4) a list of visas that were converted to a different type?

10. Phase Two - Inquiry

In relation to the abovementioned gaps and questions on the Gupta’s and other further issues that emerged in phase one; the following persons, were all engaged in person under oath administered by the PCHA to form part of phase two of the inquiry:

• Mr. Rudie Heyneke - Lead on State Capture Organisation Undoing Tax Abuse (OUTA)
• Mr. Jonas Lehare - North West Member of the Executive Council (MEC) for Education
• Ms. Stephinah Semaswe - Head of Department (HOD), North West Education Department
• Mr. Jackie McKay - DHA Deputy Director General (DDG) Immigration Services
• Mr. Vusi Mkhize - Former Deputy Director-General: Civic Services, DHA
• Mr. Norman Nawga Ramashia -  DHA Chief Director: Back Office.
• Mr. Richard Sikakane - DHA Deputy Director: Citizenship and Travel Documents
• Mr. Major Kobese, DHA Director: Appeals (Former Director Foreign office coordination
• Mr. Gideon Cornelius Christians - DIRCO New Delhi First Secretary: Immigration & Civic Affairs
• Mr. Malusi Gigaba - Former Minster of Home Affairs
• Mr. Mkuseli Apleni - Former DG of DHA
• Mr. Ronald Steyn - Munich Consul (Immigration & Civic Affairs)
• Ms Nkidi Mohoboko - Deputy Director General: Human Resource Management and Development
• Ms Charlotte Mocke - Chief Director, People Management
• Mr. Ndifelani Donald Dombo – Back Office Admin Clerk

 

The Following identified informants were not engaged with by the Committee due to their unavailability, time constraints or inability of Parliament to summons them:

• Mr.  Ajay Gupta – Oakbay Ltd. related Businessman
• Mr.  Atul Gupta - Oakbay Ltd. related Businessman
• Mr. Rajesh Gupta - Oakbay Ltd. related Businessman
• Mr. Ashu Chawla - Former CEO of Sahara Computers
• Mr. Nazeem Howa - Former Group CEO for Oakbay
• Mr. Thamsanqa Msomi - Advisor to then Minister Gigaba
• Mr. Rajesh Sundaram - Former ANN7 employee and author of “Indentured, behind the scenes at Gupta TV”
• Thiru Moodali - DHA Alexandra Office Manager

 

Inquiry Day 1: 12 September 2018

On the first day of the second phase of the Gupta naturalisation inquiry, the Portfolio Committee on Home Affairs heard from the Organisation Undoing Tax Abuse (OUTA), which had made available and analysed leaked Gupta related emails as well as from the North West Department of Education, relating to alleged ‘social responsibility programme’ in the province used in part by the Guptas to justify why their citizenship should be granted under exceptional circumstances.

OUTA provided the Committee with a presentation and additional evidence that focused on key persons that the so called ‘leaked emails’ identified as having close and suspicious relationships with members of the Gupta family companies’ related associates.

Members of the Committee engaged OUTA on the authenticity and admissibility of the leaked emails and documents as well as the OUTA affidavit in relation to whether these could conclusively prove corruption or fraud. The Committee enquired whether the emails linked the then Minister of Home Affairs, Mr. Malusi Gigaba, definitively to meeting with the Guptas and whether any of the officials mentioned in the emails are implicitly implicated in fraud or corruption.

OUTA outlined how they had contracted a reputable information technology company to establish their opinion of the mails and they found them to be authentic. OUTA continued that Mr. Malusi Gigaba, during his tenure as Minister of Home Affairs had presided over the deployment of Home Affairs official, Mr. Gideon Christians, to New Delhi in India; having verbally instructed Human Resource officials to draft a related submission. Mr. Christians was shown in numerous emails, to have had a close relationship with the Guptas, and one of their senior managers, Mr. Ashu Chawla, which was built up over several years. Mr. Christians had previously been based in India on behalf of Home Affairs, when he provided a lot of help to the Guptas with visas for their connections. Mr. Christians had been transferred to Cape Town Refugee Reception but Mr. Gigaba’s signature of and Human Resource approval which he had verbally instructed to be drafted by Home Affairs, had Mr. Christians sent back to India, even though the department didn’t have a post for him. Mr. Christians needed “Top Secret” security clearance for his new post and, when the department indicated this was an issue, he appealed to the Guptas for help. These matters were further interrogated and verified in interviews with the related officials on subsequent days of the inquiry.

OUTA indicated that it had laid charges of corruption and fraud against Mr. Gigaba, Mr. Christians and Gupta businessmen Mr. Ashu Chawla as well as Mr. Tony Gupta. This was due to Mr. Christians’ irregular appointment as well as indications of his helping the Guptas and associates circumvent the law on immigration as well as indications that Mr. Christians took favours in return (Brooklyn Police Station Case Number 892/09/2017).

The MEC and HOD for Education and Sports Development in the North West then presented telling the Committee that the province had no knowledge of the ‘social investment programme’ or feeding scheme mentioned in the letter from the Guptas to the Home Affairs Minister justifying early naturalisation.

The department was told 77 schools were sent a letter in April 2013 inviting them to be part of a competition. Upon further investigation, it was found that some of the schools were duplicated and no longer existed and this left 68 schools. Of those, it was discovered 33 schools benefited from this competition.

The Committee was told that it seems Gupta-linked companies invited schools to take part in a card drawing competition to draw invitations or congratulatory cards for the notorious 2013 Gupta wedding held in Sun City. Winning pupils and schools received ‘tokens of appreciation’ ranging from hula hoops, soccer balls, cones, netball bibs, as well as monetary prizes ranging from R1 000 to R15 000. The HOD indicated that there were not any documents in relation to these tokens that bear the Oakbay letterhead. The documents in possession of the HOD had JIC Mining Services and Sundown Ranch Sports Academy letterheads (The business links between JIC mining, Tegeta Resources and Oakbay are however well publicised). It emerged from the inquiry that proper procedures were not followed by schools, companies, nor Home Affairs, since schools were approached directly rather than through the provincial Department of Education both for donations and verification thereof. Correct logs were also not kept of such events, all of which made verification for any purpose difficult and misrepresentation more likely.

The inquiry proceeded with the Home Affairs Deputy Director-General: Immigration Services, Mr. Jackson Mackay. The Committee was interested to know what procedures were followed, if any, in terms of issuing work permits for Indian nationals to work at ANN7 or other Gupta companies as far as the requirements that citizens be given first priority for vacancies. These concerns related to issues reported in the Media and by Mr. Sundaram’s book on numerous regulatory irregularities.    

Members wanted to know on what permits Mr. Atul Gupta and Mr. Rajesh Kumar Gupta initially enter South Africa between 1994 and 1998; if the Minister of Home Affairs ever spoke to Mr. Mackay about this process of naturalisation of the Gupta brothers, and if at any point; Mr. Mackay ever communicated with Mr. Ashu Chawla or had met and spoken to any of the Gupta brothers.

The Committee found it very difficult to understand how Mr. Ashu Chawla, a well-known person in the Gupta business empire, became a very central person interacting with Mr. Mackay’s department officials without his knowledge.

Next up, the Committee heard from Mr. Vusi Mkhize, the former Deputy Director-General for Civic Services in the DHA. Members wanted to know if the Guptas were given different and preferential treatment in terms of being given an opportunity to renounce Indian citizenship subsequent to getting South African citizenship, unlike other applicants who have renounced their initial citizenship, but are still awaiting the naturalisation ceremony and are thus at risk of statelessness. The Committee also focused on the continued absence of proof by the Department for renunciation of citizenship by Ajay Gupta’s family since the Committee requesting it in 2017.

During questioning of Mr. Mkhize, it came to light that the letter of appeal by Mr. Chawla to the Minister on behalf of Ajay Gupta and his family only mentions three people, the mother and the wife and Mr. Ajay Gupta, but the recommendations by the officials to the Minister include these people as if they have applied as a family.

 

Inquiry Day 2: 13 September 2018

The Committee continued interrogating key role-players involved in the Gupta naturalisation. Individuals called to testify on this day include then Home Affairs Minister Malusi Gigaba, the Department’s former DG, Mkuseli Apleni, Mr. Richard Sikakane, Mr. Norman Ramashia, Mr. Major Kobese and Mr. Gideon Christians.

The Committee heard from the various departmental officials on the processes they followed in processing a successive number of applications by the Gupta family.

The Committee pointed out the contradictory stories on whether the family members had made individual applications or if there was one family application. They noted that the initial applications were refused but the problem began when Mr. Chawla submitted the appeal or application for exceptional circumstances.

Members pointed out that there was no proof that the family had renounced their Indian citizenship within six months as required by law. They lamented that the Department had not verified the reasons the family had advanced for exceptional circumstances and had taken the information presented on face value.

The role of Mr. Ashu Chawla came under close scrutiny as it was disclosed that officials in the Department seemed to respond promptly to all his requests and had shared sensitive information about staff deployments with him.  The sharing of sensitive personnel information with the Guptas by Mr. Christians was treasonous and the matter should be referred to law enforcement agencies. The Committee probed the relationship the officials had with Mr. Chawla and if they benefitted from this association in any way.

The Committee received information from Mr. Chawla’s lawyer that he was in India until the end of November. Members agreed that his appearance before the Committee was important and necessary.

The former DG, Mr. Mkuseli Apleni, commenced his submission but members were concerned that although he signed the submission he did not explicitly indicate approval by ticking the appropriate box on his submission on early naturalisation to the Minister. The DG admitted the oversight.

The Minister’s testimony was rescheduled. The Minister confirmed that he was ready at any time to engage with the Committee.

It was agreed that the Committee will consult the Speaker and get another date when it will be able to hear the testimonies of both the former DG and the Minister and other role-players.

Inquiry Day 3: 9 October 2018

 

Then Minister Malusi Gigaba and senior officials of DHA were subjected to intensive interrogation when they appeared before the third hearing by the Portfolio Committee. These included Mr. Norman Nawga Ramashia -  DHA Chief Director: Back Office, Mr. Richard Sikakane - DHA Deputy Director: Citizenship and Travel Documents; Mr. Major Kobese, DHA Director: Appeals (Former Director Foreign office coordination; Mr. Gideon Cornelius Christians - DIRCO New Delhi First Secretary: Immigration and Civic Affairs; Mr. Malusi Gigaba - then Minster of Home Affairs; Mr. Jackie McKay - DHA Deputy Director General (DDG) Immigration Services; Mr. Mkuseli Apleni - Former DG of DHA; Mr. Ronald Steyn - Munich Consul (Immigration & Civic Affairs); Ms Nkidi Mohoboko, Deputy Director General: Human Resource Management and Development; Ms Charlotte Mocke; Chief Director, People Management

 

The Committee probed the removal from the South African High Commission in New Delhi of Mr. Steyn, whom it was testified worked strictly “according to the law” in dealing with visa applications, whereas his replacement by Mr. Christians was shown to have submitted his application in collaboration with senior Gupta Manager Mr. Chawla. The roles and responsibilities of the Department’s human resources senior management in dealing with transfers of personnel and the processing of applications for naturalisation was dealt with in depth. Throughout the lengthy hearing, Members sought clarity on the closeness of the relationship between the officials involved and members of the Gupta family.

The short period of time between the application for early naturalisation of one month until granting, was raised as a concern. In addition, some members were granted Citizenship in a family application despite the main applicant not renouncing Indian citizenship as required by the Citizenship Act. Then Minister Gigaba strongly denied that he had done anything wrong in granting Ajay Gupta’s family early naturalisation, and rebutted any suggestion that he had given any preferential treatment to the family. He was at pains to challenge what he called a “conspiracy theory” and the “irrational logic of the chain of events.” He told the Committee that all the due processes of the Department were followed and not a single step was overlooked. The family was not granted preferential treatment. Their application was done and dealt with in the normal course of events and took place over a period. He further submitted that if he had wanted to favour the family, “we would have overlooked the fact that Mr. Ajay Gupta still had to renounce Indian citizenship and would have just simply granted him South African citizenship. Which is not the case but rather he was allowed the opportunity to renounce Indian citizenship.

When probed about his relationship with the Gupta family, the then Minister repeatedly said it was professional, and not personal. He, however, confirmed he had attended the family’s Diwali functions and visited the Gupta household in Saxonwold on several occasions, ostensibly for social cohesion reasons, before and after he became a Minister. It was established that he had a 10-year relationship with the family.

Members’ questions on the application for early naturalisation probed the manner in which it was lodged, the veracity of the claims made to justify the application, such as the investments, job creation and community support, why there was a need for urgency, and whether the Minister would agree that due diligence had not been carried out in this instance.

The former Minister responded that he had established a governance reform process, where senior management and the audit function in the Department had been instructed to review governance procedures regarding specific matters in the Civic and Immigrations Services in the Department. Two of the matters to consider; were who could apply for naturalisation for whom, and the framework for what due diligence entailed. The Department was of the view that it had been conducting due diligence all along when people had been applying for early naturalisation. The then Minister again described how the Guptas’ naturalisation application had been processed. The mere fact that the law provided for early naturalisation was an acknowledgement that there were occasions when someone need not wait for when they qualify in the normal course of events, but may need to apply for early naturalisation because of exceptional circumstances.

Members insisted that the Minister could not deny the fact that he was the political head of the Department, with political responsibility. He should therefore have exercised more caution in considering the approval of early naturalisation, and the potential conflict of interest as indicated in the Executive Ethics Act, since he had known the family for ten years.

The then Minister also denied that he had approved and initiated the transfer of Mr. Ronald Steyn from the Home Affairs office in New Delhi to Munich, because he wanted Mr. Christians there instead. He maintained that he had advised the transfer following the High Commissioner in New Delhi informing him of problems between him and Mr. Steyn, which had impacted on their working relationship, and due to the backlog in applications it was preferable to get officials who had previously worked there, such as Mr. Christians, to assist. The Minister said he was shocked to discover that Mr. Steyn had not been made aware of any problems or relationship problems with the High Commissioner.

The Chairperson of the Committee indicated that Mr. Ashu Chawla, who was a naturalised South African, was at the centre of the facilitation of visas for the Gupta family and work permits for their employees. Mr. Chawla was in India taking care of his sick mother, and would be summoned to appear before the Committee in first week of December 2018. The DHA was requested to provide a formal report on how Mr. Chawla appeared wearing sunglasses in his identity document (ID).

The first DHA official to testify was Mr. Ronald Steyn, who described how he had been advised by telephone of his transfer from New Delhi to Munich, without reference to any particular reason. He had been unaware of any complaints regarding his performance, but had willingly accepted the transfer to escape the poor working conditions in India in exchange for the more attractive Munich environment. He was of the opinion that he processed visa applications according to the law, but there were occasions when he was instructed to prioritise certain applications by his superiors in the DHA, and conceded that those involving Gupta-linked companies had received preference, compared to other companies.  

Mr. Major Kobese, Mr. Steyn’s direct supervisor, said he had been advised by his Chief Director of the decision to recall Mr. Steyn, who had said it was because of a breakdown in his relationship with the head of mission. He had not investigated, however, because the decision had already been taken by his superiors, and he had no suspicion of any ulterior motive. He was questioned about his relationship with Mr. Chawla and the Gupta-linked ANN7 in promoting a music company he had established, and confirmed that on several occasions, at the behest of the Minister, who had been contacted by Mr. Chawla, he had sent emails to New Delhi to speed up certain visa applications.  

Ms Nkidi Mohoboko and Ms Charlotte Mocke from the DHA’s human resources department, explained in detail the legal advice and support it provided to the Immigration Services department to deploy Mr. Christians from South Africa. The challenge was that the two officials who had been identified to replace Mr. Steyn in the New Delhi and his colleague in Mumbai mission were within the borders of South Africa, and so it was not an inter-mission transfer process that could be used to take them to New Delhi. They had been called in to advise whether this could be done within the terms of the law.

Mr. McKay described the visa backlog situation in India, and his visit in 2015 to New Delhi with the Minister, after which he and the DG had had a meeting with the Minister, at which it was decided to replace Mr. Steyn and his colleague with officials who could cope better in a high pressure environment. The decision had come from the Minister, and was supported and implemented by himself and the Chief Director: Foreign Office Coordination. This had been done without any written confirmation of incompetence on the part of Mr. Steyn. Mr. Mackay indicated addressing the issue of break-down of relationship with the Head of Mission, to which he received no response.

Mr. McKay was also asked to explain the circumstances surrounding a presentation to the Minister and DHA officials by BLS International, a Gupta Linked company that provides visa facilitation services, whose joint managing directors are Mr. Nikhil Gupta and Mr. Shikhar Aggarwal.

Inquiry Day 4: 12 March 2019

Mr. ND Dombo, a back office admin clerk at the DHA affirmed to the Committee under oath, his affidavit that he had never been to Sahara Computers or Saxonwold to receive any applications from the Gupta Family. He also indicated in response to questions from Members that he received an application by post, which was opened by receiving officials and although addressed to the Minister it was processed by himself as the official delegated for receiving early naturalisation applications. Mr. Dombo did not have the information of the office and date of application at his immediate disposal. When asked if there were irregularities in the application, he responded that there were no issues of concern. There was a request via the call centre in the DGs office at the time to check on progress, which was not unusual.

The challenge identified is that applications used to be done privately and then submitted to an office by anybody and which in turn was then mailed to head office. At that time the original application was rejected at the Alexander Office prior to applications being centralised at head office. Mr. Dombo also affirmed previous testimony from officials that the Ajay Gupta family early naturalisation applications were grouped into a family group application by officials upon noting the applicants’ shared credentials.

Questions requesting clarity on the process followed at the Sandton office were sent by the PCHA to the Office Manager. At the time of the finalisation of this report a response had not been received from the Office Manager and is therefore not incorporated herein.

11. Observations

Based on the evidence provided to the Committee, despite the limitations and gaps in information mentioned in section 9, the observations of the inquiry are the following:

1. The Committee acknowledged that the initial applications for naturalisation by Ajay Gupta and family, were dealt with by the Department as a family application, and were correctly rejected. This despite the applications having been done individually by Ajay Kumar Gupta, Kamal Kant Singhala, Surya Kant Singhala, Shivani Gupta, and Angoori Gupta.
2. In the Early Naturalisation application, only Shivani Gupta, and Angoori Gupta were then granted early naturalisation despite the main family applicant, Ajay Gupta not renouncing his Indian citizenship. Although Ajay’s two Children complied with the Citizenship residence requirements, the entire application as a family unit is thus not legal in terms of the Citizenship Act.
3. The application for early naturalisation approved by former Minister Gigaba of Ajay Gupta’s family was incorrect.  
4. There are inadequate procedures for tracking the officials who receive the applications and dates of receipt, processing and finalisation of various stages of permit and document applications needed for proper accountability.
5. The procedures for the verification of supporting documentation used in the applications for citizenship and particularly early naturalisation were not sufficiently rigorous and/or enforced and thus allowed for fraud and corruption.
6. The procedures of the Citizenship Act (Section 5(9)(b) were not followed on time for tabling in Parliament, a list of those granted early naturalisation in 2013, 2014 and 2016. Given the irregularities identified in granting of such naturalisation, this is of additional concern.
7. The former DG, Apleni failed in his oversight role as an accounting officer in terms of the Public Finance Management Act. This needs further consideration given his inability to make final submissions. This is given that he presided over the numerous administrative irregularities related to the Gupta family naturalisation, irregular deployment of Mr. Christians, and permits/visas given to Gupta Company employees.
8. The oversight role of the former DDG Civic Services, Mkhize is brought into question due to his presiding over the numerous administrative irregularities related to the Gupta family naturalisation.
9. The oversight role of the DDG Immigration, McKay is brought into question due to his presiding over the numerous administrative irregularities related to Visas provided for Gupta company employees.
10. There was an irregular close relationship between Mr. Major Kobese and Mr. Ashu Chawla.
11. Mr. Cornelius Christians rendered preferential treatment and shared confidential state information with the Gupta family and associates beyond the legal and administrative requirements of his post.
12. Mr. Ashu Chawla wielded sufficient influence within the DHA to, amongst others, receive preferential treatment such as expedited and incorrect visa approvals. To the extent that officials at the department such as Mr. Christians relied on his influence to facilitate his appointment to New Delhi.
13. The particular requirement of renunciation of Indian Nationality within six months of being granted citizenship was not complied with by Ajay Gupta’s family members.
14. Complaints to several high level officials including the former DG Apleni related to significant allegations of violations of immigration legislation and regulations relating to the appointment of Indian nationals at ANN7 as revealed by Mr. R. Sundaram, for which no response and very little consequential actions appear to have resulted.
15. The Ajay Gupta Family early naturalisation application was fraudulent based amongst others on falsified social contribution documents to schools in the North West used by Mr Chawla on behalf of the family as support for their early naturalisation applications.

12. Recommendations

Based on the observations of the Inquiry, the Portfolio Committee on Home Affairs recommends the following:

1. The Citizenship Act and regulations allowing for exceptional circumstances for early naturalisation need to be amended to specify exactly how this discretion of the Minister needs to be applied. Observations 1 to 3 are grounds for the Minister of Home Affairs to conduct a review and amendment of the Citizenship Act, regulations and standard operating procedures.
2. Criminal charges should be laid against Ashu Chawla and members of the Gupta family relating to false information submitted in their early naturalisation applications.
3. Misrepresentation of social contributions as well as the improper procedure being followed as far as the renunciation of Indian Nationality should be considered by the Minister as grounds for Ajay Gupta’s family to be revoked of South African citizenship in terms of Section 8(1) of the Citizenship Act.
4. Mr Ashu Chawla’s fraudulent and corrupt activities related to both early naturalisation as well as facilitating illegal visas for Indian Nationals should be considered by the Minister as grounds for the revocation of Ashu Chawla’s South African citizenship in terms of Section 8(1) of the Citizenship Act.
5. The significant irregularities identified in this report’s observations regarding the Citizenship and Immigration Services at the Department of Home Affairs in relation to the Gupta Family and Associates, could amount to state capture and warrants that this report be referred by Parliament to the Zondo Commission of Inquiry into State Capture for further investigation.  

13. References

Department of Home Affairs (2017) Annual Report 2017/18

DHA (22 June 2017) Report on the granting of naturalization to the Gupta family

DHA (7 February 2018), Evidence of Gupta family investments and charitable contributions in support of the naturalisation of the Gupta family.

Department of Home Affairs (26 February 2018) on an Oakbay letterhead addressed to the Home Affairs DG headed: “Re: Request for further clarity on submitted documents”.

Parliamentary Monitoring Group (6 March 2018) Meeting Summary of Portfolio Committee on Home Affairs: Minister of Home Affairs on Guptas’ early naturalisation; Department on IEC, Government Printing Works Quarter 2 & 3 performance. Available from https://pmg.org.za/committee-meeting/25916/

Parliamentary Monitoring Group (12 September 2018) Meeting Summary of Portfolio Committee on Home Affairs: Available from https://pmg.org.za/committee-meeting/27069/

Parliamentary Monitoring Group (13 September 2018) Meeting Summary of Portfolio Committee on Home Affairs: Available from  https://pmg.org.za/committee-meeting/27098/

Parliamentary Monitoring Group (9 October 2018) Meeting Summary of Portfolio Committee on Home Affairs: Available from https://pmg.org.za/committee-meeting/27189/

Gupta Leaks (2018) A collaborative investigation into state capture. Available from http://www.gupta-leaks.com/

Oakbay Investments PTY (2014) Company Overview Presentation. Available from https://cdn.24.co.za/files/Cms/General/d/5442/d60c5d6dd6e44e12aee9ef4199745b87.pdf

Organisation Undoing Tax Abuse (2017) No room to hide: A President caught in the act.

Organisation Undoing Tax Abuse (OUTA) 12 September 2017. Affidavit on leaked Gupta emails relating to Home Affairs. Available from the Portfolio Committee on Home Affairs on request.

OUTA (2018) Gigaba Charges. Available at https://www.outa.co.za/projects/state-capture/gigaba-charges

Government Gazette No. 41436 of 9 February 2018 and No. 41522 of 23 MARCH 2018.

Times Live (25 January 2018) IN FULL | State capture inquiry to probe Guptas, Zuma and ministers. Penwell Dlamini. Available at https://www.timeslive.co.za/politics/2018-01-25-in-full--state-capture-inquiry-to-probe-guptas-zuma-and-ministers/

R. Sundaram (March 2018) Indentured – Behind the Scenes at Gupta TV. Jacana Media

State Capacity Research Project (2017) Betrayal of the Promise: How South Africa is being stolen.

 

Report to be considered. 

 

 

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[1] Times Live (25 January 2018)

[2] http://www.dha.gov.za/index.php/about-us/organisational-structure

[3] DHA 10 April 2018 Submission to PCHA

[4] http://www.gupta-leaks.com/

[5] DHA Annual Report (2015/16)

[6] DHA (April 2018)

[7] R. Sundaram (March 2018)

[8] Organisation Undoing Tax Abuse (OUTA) 28 June 2017.

[9] Organisation Undoing Tax Abuse (12 September 2017.)