Suspense: ANC secretary general, Ace Magashule. (Photo by Gallo Images/Papi Morake)
The former personal assistant of suspended ANC secretary general Ace Magashule has called on Justice Minister Ronald Lamola to help her fight a warrant of arrest and accused the Hawks and the FBI of intimidation and coercion.
In a statement seen by the Mail & Guardian dated 6 November, Moroadi Cholota, the woman at the heart of the state’s case against Magashule, claims that the Hawks with the assistance of the FBI attempted to coerce and coach a statement out of her unrelated to her testimony at the Zondo commission into state capture.
This comes just days after the National Prosecuting Authority (NPA) announced that they would apply for her arrest and extradition from the US.
Prosecutor Johan de Nysschen told the Bloemfontein high court it became clear “quite recently”, when detectives arrived in the US to interview her, that Cholota was not prepared to cooperate with the state.
“They [the detectives sent to the US] 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.”
Meanwhile Cholota said she was willing to cooperate with the Hawks even though she was taken in for questioning under duress from her home in Baltimore, Maryland, by the FBI.
“That decision to intimidate, threaten and promptly charge me without reason or grounds is the most blatantly egregious contravention of my constitutional and other rights both as witness and as a citizen of South Africa,” Cholota’s statement reads. “They effectively detained me within the halls of the South African embassy, an institution and building that is supposed to be there for protection of the rights of South Africans. Nothing about any of this conduct and behaviour has been ethical, worse that they then lie in a court of law and inform me that I was not cooperating with officials and I was therefore charged. My legal representatives have informed me that this is certainly not any ground in law to unlawfully arrest someone and charge them with corruption, money laundering and fraud.”
Cholota then asked Lamola, the national director of public prosecutions, Shamila Batohi, and US ambassador Nomaindiya Mfeketo to intervene on her behalf, saying that once information on how she has been treated by law enforcement reached them, charges against her would be dropped immediately.
Cholota said that she first heard she would be a witness in the R255-million case against the ANC heavyweight — involving the replacement of asbestos roofs in certain Free State townships — through media reports. She then asked for more information from South African law enforcement agencies and was later told that she would be called as a state witness in Magashule’s criminal trial.
Cholota claims that on 22 September, the FBI woke her up with loud knocking and banging on her door and ordered she get dressed immediately.
Recalling the “degrading” way in which the FBI treated her, Cholota said she was forced to dress in front of a female agent and that she was never told where she was being taken.
“I was not given any sort of privacy or respect and yet I was supposed to be a witness. I insisted on driving myself when I came downstairs to see the intimidating sight of four large SUV’s [with blacked-out windows] belonging to the agents that had come to my door.”
She was taken to the Sheraton Hotel in Baltimore where she said two white male investigating officers from the Hawks took over from their FBI counterparts.
“While I had previously been under the impression that the questioning would be in line with that of [my evidence before] the Zondo commission and the affidavit that I had deposed in the commission, it seems the investigating officers wanted information that was not contained in the affidavit and appeared to almost be pushing me towards giving more information and opinions on matters unrelated to the information in the affidavit.”
When she failed to respond to questions, Cholota said the Hawks officers became increasingly agitated and impatient with her.
“When the questioning started veering into territory that I felt was trying to implicate me or incriminate me, I questioned the reasoning behind such questions and indicated that I would be more comfortable answering such questions after double-checking with a lawyer [as] I had not been prepared for that line of questioning and was unsure how to proceed,” Cholota said. “The officials refused. They informed me that they would give me a day to think about my responses and my attitude,” she said, adding that the police officials said that her responses to their questions were of no value.
When she arrived back at her home, Cholota said she called her lawyer, who informed her that no investigating official was allowed to intimidate or attempt to coach a witness.
Cholota’s testimony is seen as critical in the case, 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 been involved for months in a wrangle over Cholota’s witness status, with his counsel, Lawrence Hodes SC, 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 contended posed a problem as it contravened the right to know which case an accused has to answer.
On 23 September, Cholota said she was again taken by the FBI, this time to the South African embassy in Washington DC, where she was interrogated by the Hawks.
She said that after various questions from investigating officials, she was again refused legal representation.
“My legal representative would inform me later that criminal legislation does not permit asking a witness questions that would incriminate that witness. I see now in hindsight that [my discomfort] with their new line of questioning was because I was starting to become aware that I was being questioned into a corner and in an attempt, that if it failed at intimidating me, would incriminate me.
“I was there and then in the halls of the South African embassy handed what was effectively a charge sheet which charged me with corruption, money laundering, and fraud. My legal representatives have informed me that . . . this is not legally permissible as an investigating officer must reasonably believe that there are grounds to arrest and charge someone. If in fact I was being a recalcitrant or uncooperative witness, then it was open for them under the Criminal Procedure Act to either serve me with a subpoena or any of the remedies for a recalcitrant witness under [section] 189(1).”
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.
The former Free State premier is accused number 13 in the case and faces more than 70 counts of corruption, money laundering and fraud related to the R255-million project. These formed the basis for the ANC’s demand that he step aside, which he refused to do, prompting his suspension in May.
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