The trial of suspended ANC secretary general Ace Magashule and his 15 co-accused has been set for 19 October.
Magashule appeared briefly for a pre-trial hearing on Wednesday at the Bloemfontein high court, where his lawyers argued that the state’s key witness against him was, in fact, a witness for the defence.
Magashule 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.
Magashule arrived in court flanked by ANC national executive committee member Dakota Legoete and former Free State premier Sam Mashini. He appeared in good spirits, telling the media that he was protected by his supporters and the state.
A massive contingent of South African National Defence Force soldiers and police were present outside the court precinct, and parts of the area were cordoned off with barbed wire to prevent Magashule’s supporters from gathering outside.
The law enforcement presence comes in the wake of what the government called attempts at an insurrection last month in parts of KwaZulu-Natal and Gauteng, which saw mass looting that has cost the country’s economy billions of rand. The violence was triggered by protests against the jailing of former president Jacob Zuma, a political ally of Magashule, for contempt of court.
The Mail & Guardian previously reported that supporters of Magashule had indicated they would camp outside court to show support for the embattled ANC leader.
Speaking to public broadcaster SABC shortly before his court appearance, Magashule rejected President Cyril Ramaphosa’s characterisation of last month’s unrest as an insurrection, saying his experience in the underground movement of the ANC during apartheid contradicted the government’s assertion.
During Wednesday’s brief pre-trial hearing, advocate Laurence Hodes, representing Magashule and businessman Edwin Sodi, argued against the state’s use of testimony that was heard at the Zondo commission probing state capture during Zuma’s presidency.
Hodes argued that an agreement had been made by Sodi and the Zondo commission that his testimony would never be used against him.
“Charging him would be unconstitutional,” the senior advocate told the court.
Hodes said it was indisputable that the state had begun investigating Sodi after his state capture testimony, basing this on the investigative diary.
“It’s an objective fact determinable from the diary,” he said, adding that all evidence against Sodi was tainted and, therefore, could not be used in any court of law.
State attorney Johannes de Nysschen said he rejected the defence’s argument with the “contempt it deserves”.
“The state case is not based on what was led before Zondo: it is based on evidence, documentary and witnesses obtained by investigators,” de Nysschen said.
The court ruled that arguments around the constitutionality of Sodi’s testimony at the state capture commission would need to be ventilated by another court.
Hodes then tried, unsuccessfully, to compel the court to characterise Moroadi Cholota — the state’s key witness against Magashule — as the accused’s witness.
Hodes argued that it was important to determine upfront if Cholota were a state or defence witness for trial preparations.
The court, however, disagreed, ruling that it was best for the trial judge to deal with admissibility of Cholota’s testimony.
During Magashule’s bail hearings last year, the state said Cholota had agreed to turn state witness. Magashule allegedly directed her to solicit proceeds from the asbestos tender for 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, Sodi, at Blackhead Consulting. Mpambani was shot dead in Sandton, Johannesburg in 2017 while allegedly travelling with a wad of cash, which, however, 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 “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,” he said.
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 and C of the state’s docket against him. The state released only part A.
“Consequently, it became clear to me that the respondent meant what it stated in [De Nysschen’s] 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 [lawyer Victor] Nkhwashu as previously referred to,” Magashule’s application reads.
He added that the unsigned affidavit, which was included in the evidence he received, was in the state capture commission’s testimony 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.”
Magashule said there was evidence to prove that Cholota was a defence witness and could not be compelled by the state to be its witness.
The NPA’s allegations in the case are that:
- In August 2015, Magashule corruptly accepted a payment of R53 550, paid at his request towards the tuition fees of the daughter of an acting judge from Mpambani;
- In June 2015, Magashule accepted R470 000, paid at his request to M-Tag Systems for the acquisition of 200 electronic tablets from Mpambani;
- In June 2015, Magashule accepted R30 000, paid at his request to SWC Nkate from Mpambani.
- Between November 2015 and January 2016, a R250 000 payment, at his 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.
The ANC suspended Magashule after he refused to step aside in the face of the case against him. He is appealing after losing a court challenge to have his suspension found unlawful.