/ 28 November 2021

Magashule wants court to throw out state’s case against him

ANC SG Ace Magashule is suing Buyisile Ngqulwana for defamation. He wants the court to declare that the allegations are false and to order Ngqulwana to retract them.
Suspended ANC secretary general Ace Magashule.

The case against suspended ANC secretary general Ace Magashule by the  National Prosecuting Authority (NPA) continues to unravel after he filed an application to have the charges against him thrown out of court. 

In his 47-page affidavit, Magashule alleged political interference, claiming that his key position in the ruling party played a significant role in the decision to prosecute him, demonstrating an ulterior motive by the state.

In his application, filed at the Bloemfontein high court on 18 November, Magashule — who was forced to relinquish his role as the ANC’s chief administrator with the onset of the case — requested that the court declare that the state’s case against him contains no prima facie evidence which would lead to a conviction. 

Magashule, who was arrested late last year on charges of fraud, corruption and money laundering linked to a R255-million tender to audit and eradicate hazardous apartheid-era asbestos roofs in the Free State when he was premier of the province, argues that the case against him is solely reliant on evidence from  Mxolisi Dukwana, one of his arch foes and member of the executive council of the Free State.

Dukwana appeared before the Zondo commission probing state capture in October 2019 to claim that Magashule had siphoned money from the government during his tenure as Free State premier. 

“It is no secret that Mr Dukwana has an axe to grind with me. This taints his credibility, [and] consequently his evidence must be viewed with circumspection. It is thus noteworthy that he is not reflected on the list of state witnesses attached to the indictment,” Magashule argues.

In his testimony at the Zondo commission, Dukwana alleged that Magashule was a  “blesser” (benefactor) to many due to payments advanced to him by Phikolomzi Ignatius Mpambani from money corruptly and fraudulently sourced from state coffers through the asbestos project.

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.

Magashule argues in his application that: “In terms of my duties as premier, I was not even remotely near to any initiations, adjudication and awarding of any tender granted to service providers. I was not the accounting authority and had no obligation to report any suspicious transactions, nor was there any evidence of any suspicious transactions that I was aware of.” 

The prosecution in the asbestos case earlier this month conceded that Magashule’s former personal assistant, Moroadi Cholota, had refused to turn state witness. Her status was always in doubt. Cholota is at the heart of the case against the ANC heavyweight.

Cholota had testified at the Zondo commission that she would approach businesses at the behest of Magashule for financial assistance for various students, both in South Africa and abroad. Magashule states in his affidavit that educational initiatives were not unique during his tenure as premier and that a significant portion of his salary as ANC secretary general was utilised to certify numerous debit orders to various educational and charitable causes.

“Additionally I am renowned for my involvement in various charities such as Friends of the Free State,” he said. 

Magashule has also argued that the state failed to comply with section 27 of the Prevention and Combating of Corrupt Activities Act. Earlier this month the state admitted flouting a requirement in law when it charged Magashule under the Act. Magashule was not approached for an explanation as to why he failed to report an alleged crime, nor was he given proof of an authorisation by the NPA for the institution of a prosecution, as demanded by section 27.

“I have been advised that Section 27 provides that such an authorisation may only be issued after the person concerned has been afforded a reasonable opportunity by the investigating officer or prosecuting authority, as the case may be to, explain the case of Section 34 (2) why he or she failed to report,” Magashule said, adding that if the application to have the case against him thrown out is denied, the state should be compelled to disclose its witness list.

Magashule has complained since his arrest that the state has failed to play open cards with his defence team by withholding its docket and witness list, which he said creates the impression that the case against is far from being ready for trial.