Former ANC secretary general Ace Magashule.
An agreement has been reached between the state attorney and suspended ANC secretary general Ace Magashule to release sections of a docket of evidence against him.
Magashule is to appear in the high court in Bloemfontein on 11 August for pretrial hearings. He and his 15 co-accused face 74 charges of fraud, theft, corruption and money laundering relating to the R255-million Free State contract regarding houses with asbestos roofs.
Sources in Magashule’s circle say he is confident the case against him hinges on untested testimony from his former personal assistant, Moroadi Cholota, who appeared at the Zondo commission in 2019.
In his affidavit, Magashule said the state’s key witness against him was, in fact, the defence’s witness. He is arguing that Cholota had provided a statement to his attorneys before being approached by the state.
During Magashule’s bail hearings, the state argued that Cholota agreed to turn state witness. Magashule allegedly directed her to solicit proceeds from the asbestos tender his personal needs.
The National Prosecuting Authority (NPA) said these solicited funds were sought from the late Phikolomzi Mpambani, who was an account holder with Magashule’s co-accused, Edwin Sodi, at Blackhead Consulting. Mpambani was gunned down in 2017 in Sandton while allegedly travelling with a wad of cash, which was not taken.
In Magashule’s application to the courts for sections of the state’s case involving Cholota’s testimony, he said her affidavit was consistent with all “our” previous encounters with state organs and “are supportive of each other”.
“I knew that Cholota had not implicated me in any wrongdoing because I was never involved in any. I thus thought her version would be changed for it to be beneficial to the state. I was thus comforted by the thought that she would have to explain the basis upon which she recanted her previous version or stood a chance of being charged with perjury, having changed a version that she swore under oath.”
Magashule said his lawyer, Victor Nkwashu, who was also Cholota’s lawyer, has approached him for assistance in dealing with the FBI.
He added that he was relieved after reading a media report that Cholota had denied turning state witness and requested the state evidence inclusive of parts A, B, C of the state’s docket against him. The state only released part A.
“Consequently it became clear to me that the respondent meant what it stated in [state attorney Johannes] de Nysschen email and was not willing to disclose parts B and C of the docket despite my attorney’s requests. Most significantly, the disclosed section A of the docket does not contain a signed statement by Cholota relevant to the charges in the matter. It does nevertheless contain a signed affidavit that she made with Nkwashu as previously referred to.”
Magashule added that the unsigned affidavit in parts of the docket he received were in the state capture commission’s compiled by Free State evidence leader Ettienne Lambrechts. “I thus have grave reservations of whether in truth or in fact she is a state witness.”
He said there was evidence to prove that Cholota is a defence witness and cannot be compelled by the state to be its witness.
Another reason for his application was the testimony of the Free State’s ANC interim provincial committee convenor and his rival, Mxolisi Dukwana, at the state capture commission on the asbestos contract. He said a police investigation was instituted after this testimony.
Magashule said the state’s evidence relating to Dukwana’s statement would provide documentary evidence that led to the case being opened years after the asbestos project. Magashule said there would also be documentary evidence on political manipulation or improper influence in the investigation against him.
He added that evidence in the docket would also provide evidence about possible proof of witness manipulation by law enforcement to testify falsely against him.
In an email dated 20 August to Magashule’s legal representation, De Nysschen said his office had neglected to inform him timeously of the application, adding that at the time they were not prepared to disclose sections B and C of the docket.
De Nysschen said they were now prepared to disclose their evidence to prove that there was no interference.
The NPA said it is alleged that:
- In August 2015, Magashule corruptly accepted a payment of R53 550, paid on his request towards the tuition fees of the daughter of an acting judge from Mpambani;
- In June 2015, Magashule accepted R470 000, paid on his request to M-Tag Systems for the acquisition of 200 electronic tablets from Mpambani;
- In June 2015, Magashule accepted R30 000, paid on his request to SWC Nkate from Mpambani.
- l Between November 2015 and January 2016, a R250 000 payment, on his request, was made by Mpambani to Astra Travel towards travel expenses of a delegation to Cuba; and
- l Magashule failed to report corrupt transactions in contravention of the Prevention and Combating of Corrupt Activities Act.
The ANC suspended Magashule after he refused to step aside following the state’s case against him.
He lost his court challenge to have his suspension found unlawful.
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