For almost 20 years, while the Gupta family were wheeling and dealing, getting close to government ministers and making billions, they were still foreigners.
Despite their professed commitment to South Africa, up until a few years ago, the family only held temporary residence permits or business visas before they finally applied for permanent residence and got their citizenship papers fast-tracked by the then home affairs minister, Malusi Gigaba, in 2015.
The Citizen put questions to the department weeks ago on the status of permits that were issued upon their arrival, the family or individual’s first application for permanent residency, how many were granted this documentation and the reasons for it.
But the department ducked the issue this week with vague and evasive answers that gave no information about the permits the family had prior to their acquisition of citizenship in 2015.
With the information blackout, a leading immigration attorney says the family may very well have been in breach of their business visas – which are required for commercial purposes – until they were granted citizenship in 2015.
This is due to immigration laws that allow a foreign national to operate only one business under this visa. It is common knowledge that the Guptas have run a string of businesses, including Sahara Computers, for all these years.
The home affairs statement said: “The department of home affairs was asked to investigate and report specifically on the granting of naturalisation to five members of the Gupta family, namely: Mr Ajay Gupta; Mrs Shivani Gupta (wife); Mrs Angoori Gupta (mother); Mr Kamal Singhala (son) and Mr Surya Singhala (son).
“A report was prepared and presented to the portfolio committee on home affairs, which is still looking into the matter. According to our records, of these five members of the Gupta family, none arrived in the country in 1993. Thus the difficulty experienced in dealing with the questions as per your request.”
Mystery surrounds the family’s history in South Africa. By their own admission, they arrived in 1993 to set up businesses.
According to Atul, the business was started with money brought from India. Currently, a requirement for a business visa is that a minimum amount of R5 million be brought into the country.
It is not known what the requirement was in 1993, although immigration experts point out that, at that time, the National Party government was still in power and strictly controlled immigration.
It is a mystery how an Indian national, from a country vigorously opposed to apartheid, would have been granted a permit.
According to immigration attorney Craig Smith, prior to being granted South African citizenship or permanent residence, all the Guptas ought to have gained temporary residence.
“Since they are foreigners in South Africa and sought to run a business in South Africa, they would need to have had a business visa, as you need such a visa to operate a business,” said Smith.
The important thing to note in this regard, he pointed out, is that this visa only allows a person to run one business.
“A business visa caters for a foreign person intent on setting up or investing in a specific business in South Africa as a partner.
“It envisages that the business be registered and a business plan of that business be provided to limit the scope of the business visa to those business activities contemplated in the business plan. It should solely relate to that business,” Smith said.
“Fundamentally, it does not contemplate a foreigner coming to South Africa, obtaining a business and rampantly opening businesses left right and centre, as that would be illegal and contrary to the Aliens Control Act of the 1990s and the Immigration Act from 2002.”
No business visa gives an unfettered “right to run business as he or she pleases as contained in the terms of the business visa”, he added.
“Anything done or performed in contrast to the terms of the visa would be considered unlawful and would most certainly be in breach of the Immigration Act and automatically render the business visa null and void.
“The owner of the business visa would then be an illegal foreigner from the time of such illicit activities.
“Such illicit conduct – to conduct or perform activities outside the realms of the business visa, or any visa for that matter – would be a criminal offence in terms of the Immigration Act.
“Alternatively, as an illegal foreigner, he or she would normally be subject to arrest and deportation.”
Smith added that this in itself should have resulted in them not receiving their permanent residency or South African citizenship.
This would be due to home affairs normally rendering such people to be not of good and sound character in terms of immigration and citizenship laws. – firstname.lastname@example.org