The Bloemfontein high court will hear Ace Magashule’s application to have the corruption charges against him withdrawn on 21 and 22 February after the National Prosecuting Authority (NPA) filed a reply rubbishing his claim that its case was politically motivated.
Acting Free State director of public prosecutions Navilla Somaru has submitted in an affidavit that the application by the suspended secretary general of the ANC for several declaratory orders was a spurious attempt to delay answering the case.
“Those advising the deponent are, with respect, clearly embarking on a stratagem to delay the hearing of the actual trial,” Somaru argued.
Magashule has filed papers asking the court to declare that there is no prima facie case against him, but Somaru said every point he raised could instead be addressed by the court during the trial dealing with the R255-million Free State asbestos audit scandal in which he is accused number 13.
Of his claim that there is no case against him that could be successfully prosecuted, she said: “This is, respectfully, denied.
“The averments in support of this relief relate to the cogency of the evidence which must ordinarily be dealt with through the trial,” Somaru continued. “It will be argued that a prima facie case for prosecution is apparent from the indictment.”
The prosecution last month informed the court that Magashule’s former private assistant Moroadi Cholota was no longer prepared to testify for the state, and would be extradited from the US and added to the list of accused.
In his application, Magashule had accused the NPA of prosecutorial misconduct for claiming her as a state witness without the benefit of a signed statement in which she agreed to such, and even though she was prepared instead to testify in his defence.
But Somaru countered that since Magashule’s bail conditions prevented him from contacting Cholota, he could not claim to know what she planned to do.
Therefore, that case he sought to make for misconduct was baseless, resting it seemed, entirely on his misplaced assumptions as to her thinking.
The state rejected Magashule’s contention that the charges against him were a smear campaign as “shadowy”. Somaru said he offered no evidence of this, apart from alleging political interference to prevent him from holding positions in the ANC. In addition, he failed to say who in the party both had a vendetta against him and influence within the NPA.
“The allegations are entirely vague, respectfully romancing, and fanciful,” she said.
Magashule’s counsel, Laurence Hodes, in October filed notice in terms of section 85 of the Criminal Procedure Act asking that the corruption charges against his client be dropped.
His argument was that the Prevention and Combating of Corrupt Activities Act does not apply to his client because, as a political office bearer, and not an accounting officer, he fell outside the categories of people listed in the legislation. Magashule is seeking a declaratory order that he was not “an executive authority”, as defined by the Public Finance Management Act.
The state disputes this, saying his argument is trumped by the Constitution, which stipulates that provincial premiers exercise executive authority.
Magashule’s defence team raised the additional objection that he was not approached for an explanation as to why he failed to report an alleged crime, as required by section 27 of the Prevention and Combating of Corrupt Activities Act, nor was he given proof of an authorisation by the NPA for the institution of a prosecution.
But the NPA said that this was neither necessary, nor prudent, given the political context in which his indictment in November last year occurred.
“Had reasonable notice been given to Magashule of an intended prosecution, based on all the evidence against him, he may have taken steps to evade justice, made multiple approaches to the courts to delay or evade prosecution, or otherwise have interfered with the investigation.”
It said the murder of Igo Mpambani in Sandton in 2017 served to illustrate how high the stakes surrounding the asbestos matter were.
Mpambani’s Diamond Hill Trading had, in a joint venture with Edwin Sodi’s Blackhead Consulting, secured the audit tender that allegedly saw kickbacks flow to their political connections in the province.
The NPA stressed that the contravention of the Prevention and Combating of Corrupt Activities Act was an alternative charge and that section 27 of the law did not “afford an accused a reasonable opportunity to be heard in circumstances where there are other charges primarily pursued against the accused”.