The case against Ace Magashule

A year after his indictment, the state confirmed in court this week that Ace Magashule’s personal assistant has refused to testify against him in the asbestos corruption case that prompted his suspension as secretary general of the ANC and subsequent political downfall.

Prosecutor Johan de Nysschen told the Bloemfontein high court it became clear “quite recently”, when detectives flew to the US to interview her, that Moroadi Cholota was not prepared to cooperate with the state.

“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,” De Nysschen said.

She was now “a suspect soon to be an accused in this matter” he said, and would be added, likely as accused number 17, once back in South Africa.

De Nysschen added that if there were a “hiccup”, and Cholota was not extradited timeously, “the state will have no choice but to proceed without her”. 

Free State Judge President Cagney Musi said there was always the possibility that Cholota might return voluntarily but prudently postponed the matter to February next year. Her witness status has been a tug-of-war between the accused and the state since day one and while it is not clear if she will resist extradition, she does not lack for legal representation.

Magashule says a statement she gave to his lawyers supports his version of events, and that the prosecution lied about her turning state witness to bolster a baseless case that is a conspiracy to sideline him in the ruling party. 

A fortnight ago in court, Magashule’s counsel, Laurence Hodes SC, again pressed De Nysschen for an answer on Cholota’s status, saying if she was not in fact a state witness, the defence wanted to consult with her and prepare for the trial. He also demanded a list of all the state’s witnesses.

De Nysschen declined, as he did again this week after revealing that the list now excluded Cholota.

Hearing of the warrant for her arrest on 3 November and stressing that it was news to him, Hodes objected to Musi’s assertion that the subject of her witness status was therefore “a dead letter” and not cause for further objection.

Charges against co-accused Edwin Sodi should be dropped, said the men’s lawyer, because they are based on self-incriminating testimony from the Zondo commission. (Photo by Gallo Images/Luba Lesolle)

“No, my lord, with respect, it is more serious than that,” he said, and went on to accuse the prosecution of misrepresenting the facts at the time of Magashule’s bail hearing, when his client was warned that Cholota was a state witness and that he may not communicate with her directly or indirectly.

Her refusal to testify against Magashule raised the question of whether the state was in fact ready to proceed to trial, Hodes suggested.

Prosecuting public corruption is an intricate endeavour and Cholota was seen as crucial to the state’s hopes of linking Magashule to the kickbacks that flowed from the R255-million asbestos audit tender. It is alleged that she was among close aides who solicited money on his behalf from the late Phikolomzi Mpambani after the Free State department of human settlements began making payments towards the fraudulent, and ultimately hopelessly failed, project to count and replace asbestos roofing.

The tender was awarded to a joint venture between Mpambani’s Diamond Hill Trading and Edwin Sodi’s Blackhead Consulting. The two men reportedly shared a spreadsheet indicating that R10‑million was to be set aside for one “AM”.

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