Suspended ANC secretary general, Ace Magashule. (Photo by Gallo Images/Papi Morake)
Moroadi Cholota‘s bewilderment was palpable when told she would be a state witness in Ace Magashule‘s R255-million corruption case, as the Directorate for Priority Crime Investigation (the Hawks) grilled her on emails from the former Free State premier’s office.
The Mail & Guardian has obtained a recording of the interview the Hawks conducted with Cholota in the US in October, almost a year after Magashule was arrested in November 2020.
Earlier this month, the state conceded that Cholota had refused to turn state witness. Her status was always in doubt. 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,” he said.
During the interview, which was conducted by Hawks officers who introduced themselves as a Captain Calitz and a Brigadier Gerber, it emerged that the state had announced that Cholota would be their witness without having contacted her, or confirmed her willingness to testify against Magashule.
Cholota, according to her interview with the Hawks, was an appointment secretary who worked in the office of the premier from 2013 to 2019, and is currently studying political science and international relations in the US.
The National Prosecuting Authority (NPA), in official documents, alleged in November last year during Magashule’s first court appearance that Cholota would be a key witness against Magashule because the former secretary had sent emails that allegedly solicited funds from the late Phikolomzi Ignatius Mpambani, who was a director at Blackhead Consulting.
Mpambani and one of Magashule’s co-accused, Edwin Sodi, received the R255-million tender to audit and eradicate hazardous apartheid-era asbestos roofs in the Free State.
The NPA alleges that:
- In August 2015, Magashule corruptly accepted a payment of R53 550 from Mpambani, paid at Magashule’s request towards the tuition fees of the daughter of a then acting judge;
- In June 2015, Magashule accepted payment of R 470 000 from Mpambani, paid at Magashule’s request to M-Tag Systems for the acquisition of 200 electronic tablets;
- In June 2015, Magashule accepted a payment of R 30 000 from Mpambani, paid at Magashule’s request to SWC Nkate;
- Between November 2015 and January 2016, a payment of R 250 000, at Magashule’s request, was made by Mpambani to Astra Travel towards the travel expenses of a delegation to Cuba; and
- Magashule failed to report corrupt transactions in contravention of the Prevention and Combating of Corrupt Activities Act.
Altogether, the state alleges that Magashule unlawfully disbursed R873 550 from the proceeds of the R255-million asbestos contract.
Magashule filed an application to the Bloemfontein high court seeking an order to have the case against him thrown out.
In his affidavit, Magashule alleges that his lawyers had been denied recordings of the Hawks’ interview with Cholota by the NPA. The NPA, according to Magashule, denied having any minutes of the Hawks’ interview with Cholota. Magashule argues that the state’s attitude towards his defence raises concern that he would not receive a fair trial.
Cholota, who will be key to proving these allegations, was bemused that she would be a key witness a year after Magashule’s arrest.
She seemed bewildered by the fact that she was named as a state witness without her knowledge.
“So, I am a state witness,” Cholota said, to which Brigadier Gerber responded, “You are a state witness, yes.”
“At this stage, we view you as a state witness,” Gerber added.
“So, okay, I’m being told now that I am a state witness because … I’ve been seeing everything [in] the media. I have never been approached by anyone; I have never received any letter or any summons. That is why I am asking now,” Cholota said, sounding surprised.
“So, who decides that you are a state witness; is it the government or the court that decides that?” she asked.
Gerber responded that the state wanted to proceed on Section 204 of the Criminal Procedure Act, meaning she would be absolved of any culpability if she testified against Magashule, but incriminated herself in the process.
“If the court finds that your testimony was truthful, they will absolve you from any wrongdoing [with regard to the case],” Gerber told Cholota.
“If, then, we proceed and it becomes apparent that the 204 route will not work, or you’re unwilling to go that route with us, obviously we would have to explore other avenues — maybe viewing you in a different light, as a suspect in the matter, which is not, at the current stage, what we are doing.”
Moroadi Cholota
Magashule said that he was “dismayed to find out that Cholota was a state witness”. He has also argued that there was evidence to prove she was, in fact, a defence witness and could not be compelled to testify for the state.
But NPA spokesperson Mthunzi Mhaga said after Magashule’s last court appearance in early November that Cholota was now a suspect, whom the state sought to extradite to South Africa.
“She is not cooperating … we’re going to charge her because there’s evidence implicating her. However, this does not have a bearing on the strength of the state’s case,” said Mhaga.
The Mail & Guardian previously reported that Cholota had written a letter to Ronald Lamola, calling on the justice and constitutional affairs minister to come to her aid, alleging intimidation and coercion by the Hawks and their US counterparts, the FBI.
She claimed that the Hawks with the assistance of the FBI had attempted to coerce and coach a statement out of her unrelated to her testimony at the Zondo commission into state capture.
“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 had been treated by the Hawks and the FBI reached them, charges against her would be dropped immediately.
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