Suspended ANC secretary general Ace Magashule claimed outside the Bloemfontein high court on Tuesday 19 October that his political legacy was sound and the asbestos audit corruption case against him spurious, as his lawyer filed papers objecting to a raft of the charges against him as irregular.
Magashule, together with his dozen-plus co-accused, who include former Mangaung mayor Olly Mlamleli and businessman Edwin Sodi, face more than 70 charges of corruption, money laundering and fraud related to a R255-million project to audit and remove asbestos roofing in the Free State while he was premier of the province.
Free State Judge President Cagney Musi postponed the case to 3 November for pre-trial matters to be completed, and a trial date to be set.
Laurence Hodes SC, representing Magashule, told the court he believed the state could respond to his client’s section 85 notice to have some of the charges dropped, served just before the sitting, ahead of the 3 November court date and that it should then be dispensed with as a pre-trial matter.
“In relation to accused number 13 [Magashule], we have filed a section 85 notification contending that there is fundamental error in the charge and that we are objecting to the charge because he does not fall within the definition of the Prevention and Combating of Corrupt Activities Act,” Hodes said.
The act, adopted in 2004, applies both to public office bearers and people in the private sector, but 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.”
Defence or state witness?
Contacted telephonically after the hearing, Hodes refused to explain to the Mail & Guardian why it would be irregular for Magashule to be charged.
Hodes demanded that the state furnish Magashule with a full list of witnesses who will be called to testify against him. He told the court the prosecution has declined, and instead referred him to the charge sheet.
The state and Magashule have for months been involved in a wrangle over the witness status of his former personal assistant, Moroadi Cholota. Magashule has claimed that the prosecution lied about her turning state witness to bolster a case that he terms a conspiracy to sideline him in the ruling party.
His legal team insists that they have a statement from her as a defence witness, and want to consult with her and prepare for the trial. However, if she has turned state witness, they’re precluded from doing so.
Musi pointed out that the notices served on all the accused in terms of section 212 (b) of the Criminal Procedure Act should go some way to answering the question.
“It seems to me that in as far as there are charges which relate to him, there are indeed persons mentioned in those charges or a person, at least, that implicates him. When you say persons implicating him, what do you mean?”
Hodes replied: “We have asked the state to identify which state witnesses implicated him and they told us to refer to the docket and the indictment, we were told that they are not prepared to commit themselves to naming particular individuals.”
If Hodes is pushing to have Cholota’s status settled before the trial starts, the state has been reluctant to show its hand.
State prosecutor Johan de Nysschen told the court he would argue the point later, as it was not practical to give a list of witnesses at this stage and he did not want to bind himself to five or ten at this point.
Pressed by Musi, who pointed out that he could oblige the defence with a non-exhaustive list, he replied: “I will consider it, my lord.”
Zondo commission testimony
De Nysschen in August told the court Cholota had – subsequent to her testimony at the Zondo commission probing state capture in South Africa – prepared another statement with the help of the inquiry’s legal team but had not signed it yet.
Turning to Magashule’s objection to corruption charges, De Nysschen said he would study the notice and respond later.
Outside court, Magashule again proclaimed his innocence.
“There was no such thing as a removal of asbestos… and I was not involved in the asbestos. I don’t know why I am in this case.”
He said he remained a loyal member of the ANC and denied that the failures of the Free State provincial government stemmed from his decade as premier.
“Have you ever heard the community of the Free State complaining during our time, have you ever?” Magashule asked journalists outside court.
The state argues that bribes were paid to a number of people at Magashule’s behest as part of the asbestos tender. Cholota’s testimony is considered crucial as she may have first-hand knowledge of the money flows.
The court on Tuesday heard that Magashule, Sodi and most witnesses had yet to respond to the state’s 212 (b) notices, which normally deal with matters that are not in dispute and can be adduced from affidavits.
Sodi, also represented by Hodes, is demanding 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.
De Nysschen has denied that the case against him rests solely on his testimony. 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.