/ 22 February 2022

UPDATE: Magashule pleads for asbestos charges to be scrapped, with costs

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.

Ace Magashule’s legal counsel on Tuesday argued that two missteps by the state were fatal to the corruption charges against him flowing from the Free State asbestos scandal, and that the case smacked of political motive.

Advocate Laurence Hodes told the Free State high court that firstly the state flouted the requirement in section 27 of the Prevention of Prevention and Combating of Corrupt Activities Act that investigators may not charge an accused in terms of section 34(2) of the Act without providing proof of an authorisation by the National Prosecuting Authority (NPA) for the institution of a prosecution.

Hodes said the language of section 27 was plain and made authorisation a jurisdictional prerequisite.

“‘Must’ means that you are compelled or forced to, there is no discretion,” he added.

Secondly, he said Magashule was not, as the section further requires, given a reasonable opportunity to explain why he allegedly failed to report corruption in terms of section 34(2) of the Act.

Again, he said, the law was clear that the prosecution may be instituted “only after” such an opportunity was afforded to the accused by the investigators but the state had ridden roughshod over the accused’s rights. 

He also rubbished the state’s argument that it did not want to broadcast Magashule’s pending arrest because of the political climate in which it happened – hence a statutory requirement could be overlooked in the public interest – and that asking him for an explanation might potentially have violated his right to remain silent in relation to alternative charges he faces in the complex fraud, corruption and money-laundering case. 

“We are going from the ridiculous to sublime,” he said. “The last thing you see them doing is protecting the rights of the accused.”

He was equally scathing of a suggestion by the state that should the accused take issue with the lack of authorisation, it should file an application in terms of section 106(1)(h) of the Criminal Procedure Act to argue that the prosecutor lacked the title to proceed with the matter.

In a reference to the fact that former president Jacob Zuma relied on this provision to enter a special plea in his arms deal corruption case, Hodes said it seemed that such “seems to be the new fashion”, but that it was not his approach. Rather he was arguing procedural irregularity, which is not covered in that section.

“That is pushing a square peg into a round hole … We do not take issue with the title of the prosecutor, we have never done so.”

When Magashule’s defence team raised the procedural concerns last year, state prosecutor Johan de Nysschen countered that the lack of authorisation for the section 34(2) charge at the time of his arrest was not irredeemable as it was an alternative charge.

Hodes recalled that at the time the matter was before Free State Judge President Cagney Musi, who pointed out that it was his reading of the Act that this did not matter, saying: “You can’t just say it is an alternative charge, the fact of the matter is, it is a charge.”

Magashule is asking that charges be dropped, with the state paying the costs of his application.

But the strategy does not target only the corruption charges, as Magashule’s defence team may yet argue that the main charge of fraud must fall too, as these were based on the same contentions.

Hodes also touched on the subject of Magashule’s former personal assistant Moroadi Cholota, insisting that the state warned him that she was a state witness at a time when it did not have a statement to that effect from her.

Cholota has refused to turn state witness and De Nysschen on Monday told the court that she was still in the US and the process to extradite her was ongoing. She will be added to the list of the defendants in the matter.

Responding to Hodes’s pleading, Advocate Nazeer Cassim, for the NPA, said his reading of the charges against his client was incorrect and opportunistic. Turning to charge 15, one of those of corruption, he read an email where Magashule is thanked for a donation for the tuition fees of an acting judge’s daughter. The money, Cassim stressed, was the proceeds of graft involving state funds.

“What did she do to deserve that when we have pit toilets in this country? He must answer to this.”

But Hodes in reply said the state missed a crucial step here, as sponsoring studies was not illegal and for a corruption charge to be substantiated, it must be shown that the money was paid as a form of inducement to the parents. 

He said the charges against his client were politically motivated, and this was borne out by the fact that at the time of arrest the investigation against him had not been completed.

“The charges against this applicant were premised on the alleged testimony of Ms Cholota. Now she is an accused, surely in the interest of justice and being honest with the court, things have changed. It is not something you can just wish away and ignore.

“It has to have impeded their ability to proceed with the trial… this all results, my lady, in the irrefutable inference of an abuse of power and mala fides, and it is all politically motivated.”

The Zuma case has put it in the public legal precedent confirming that in the South African legal system prosecutors were allowed to adopt an adversarial approach and that neutrality was not absolute. 

But Hodes said given the political context of Magashule’s indictment a partisan approach was suspect.

“At the end of the day, if you break it down to the basic undercurrent, it is so apparent, and so patently obvious here, when regard is had to the timing of everything that has happened here and the allegation that is made on affidavit of political interference and the implementation of the step-aside policy, with the criminal case, at a time when we were moving towards elections and big decisions were being made in our country, it is inexcusable for the state to be partisan and this court ought not to condone such conduct or allow it,” he concluded.

On Monday, the court heard applications from Edwin Sodi, the owner of Blackhead Consulting, that charges against him be dropped on the R255-million tender for the asbestos audit, as well as from former provincial officials Thabane Zulu and Nthimotse Mokhesi, for the charges against them to be withdrawn.

Counsel for Zulu and Mokhesi argued that the case against their clients was impermissibly built on their self-incriminating testimony to the Zondo commission of inquiry.

Hodes also represents Sodi and argued that the state has flouted his fair trial rights by obfuscating the extent to which there, too, it is relying on testimony to the commission. He argued that the genesis of the investigation showed that this was the basis of the charges, noting that a warrant for Sodi’s arrest was only executed after about four weeks, and a day after his last turn on the witness stand.

Magashule filed the section 85 application to have the charges dropped last October, almost a year after his arrest. At the time of his indictment, he refused to step aside in line with the ANC’s policy that those facing serious charges should do so. However, he later lost a court bid to have his suspension by the party set aside.

Judge Soma Naidoo reserved judgment.

This story has been updated to reflect further court argument and the reservation of judgment.