Former Free State premier Ace Magashule. (Mlungisi Louw/Volksblad/Gallo Images via Getty Images)
Suspended ANC secretary general Ace Magashule’s former personal assistant has refused to testify for the state in his corruption trial, prompting the National Prosecuting Authority (NPA) to apply for her arrest and extradition from the US, the Bloemfontein high court heard on Wednesday, 3 November.
Prosecutor Johan de Nysschen told the court it became clear “quite recently”, when detectives arrived abroad to interview her, that Moroadi Cholota was not prepared to cooperate with the state.
“We have sent the detectives to the USA,” he said.
“They came back and they reported to us that, in a nutshell, Ms Cholota is not cooperating. She is therefore not going to be a witness for the state anymore. In the circumstances I had no choice but to sign a warrant of arrest for her and we are now busy with the process to get her back to South Africa.
“So that is the position, she is a suspect soon to be an accused in this matter. I shall add her the moment she gets into South Africa,” de Nysschen said.
He added that if there was a “hiccup”, and Cholota was not extradited timeously, “the state will have no choice but to proceed without her”.
Cholota’s testimony is seen as critical in the matter, as she may have knowledge of how inducements were allegedly paid at Magashule’s behest in the Free State asbestos scandal that played out while he was premier of the province.
The state and Magashule have for months been involved in a wrangle over Cholota’s witness status, with his senior counsel Lawrence Hodes pressing De Nysschen in court on 19 October to give the defence a list of state witnesses.
The prosecutor demurred that it was not practical, at that point, to do so. He declined again on 3 November, which Magashule’s legal team contends poses a problem as it contravenes the right to know which case one has to anwer.
Hearing of the warrant for her arrest on that day, and stressing that it was news to him, Hodes objected to Free State Judge President Cagney Musi’s assertion that the subject of Cholota’s status was therefore “a dead letter” and not cause for further objection.
He replied: “No, My Lord, with respect, it is more serious than that.”
During Magashule’s bail application last year, the defence was warned that Cholota was a state witness and that he may not directly or indirectly communicate with her, Hodes recalled. This turned out to be a misrepresentation and raised questions as to whether the matter was indeed ready to proceed to trial, he argued.
Magashule has for some time claimed that the prosecution lied about Cholota turning state witness to bolster a case that he terms a conspiracy to sideline him in the ruling party.
Magashule is accused number 13 in the case and faces more than 70 charges of corruption, money laundering and fraud related to the R255-million project to audit and remove asbestos roofing in the province. These formed the basis for the ANC’s demand that he step aside, which he refused to do, prompting his suspension in May.
The prosecution faces further difficulty in the case, which could have far-reaching implications for the ongoing power struggles within the ruling party.
Hodes two weeks ago filed notice in terms of section 85 of the Criminal Procedure Act asking that the corruption charges against his client be dropped. His argument was that the Prevention and Combating of Corrupt Activities Act does not apply to his client because as a political office bearer, and not an accounting officer, he fell outside the categories of persons listed in the legislation.
Hodes contended: “Mr Magashule does not fall within that class of person so it would be irregular in our submission for him to be charged.”
He said this application should be dealt with at the pre-trial stage, as it relates to the fairness of the trial.
If the application were to succeed and the charges in terms of section 34(2) of the Act could not stand, Magashule may argue that the main charge of fraud must fall too, as these were based on the same contentions.
Hodes raised a further objection in court, saying his client was also not approached for explanation as to why he failed to report an alleged crime, as required by section 27 of the Prevention and Combating of Corrupt Activities Act, nor was he given proof of an authorisation by the NPA for the institution of a prosecution.
Moroadi Cholota (YouTube)
“The fact of the matter is no, so the charges cannot stand. In order to be able to charge a person in terms of section 34 you have to be in a position to furnish that certificate upfront, not to say, well, I’ll find it.”
Musi asked De Nysschen whether or not the accused was in fact asked for an explanation, and De Nyscchen answered in the negative, adding that the state had not wanted to announce its plans to arrest.
“My Lord, we did not want to broadcast the intention to arrest certain people. The main charge, the one of fraud, the accused would in any event have been arrested for fraud, the contravention of section 34 is only an alternative charge.”
He added that should the accused insist on giving an explanation, this remained an option.
But he was sharply corrected by Musi, who said the Act was clear and there must first be authorisation in writing for a prosecution to be instituted in terms of section 34(2).
“You can’t just say it is an alternative charge, the fact of the matter is, it is a charge.”
De Nysschen said he would file papers in response to Magasghule’s application and needed time to do so.
Hodes also represents businessman Edwin Sodi, accused number 3 in the matter, and is asking that the charges against him be dropped because they are based on self-incriminating testimony to the Zondo commission, given shortly before he was arrested in September last year.
Sodi’s Blackhead Consulting, in a joint venture with the late Igo Mpambani’s Diamond Hill Trading, secured the audit tender and were paid R230-million in taxpayers’ money.
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