The high court in Bloemfontein has dismissed with costs the application by Ace Magashule to have the corruption charges he faces over the asbestos audit scandal thrown out, advising him and three co-accused to raise their complaints of fair-trial-rights infringements and prosecutorial missteps in the trial court.
Judge Soma Naidoo said the same applied to similar relief sought by three of Magashule’s co-accused — Edwin Sodi, the director of Blackhead Consulting and former Free State provincial officials Thabane Zulu and Nthimotse Mokhesi.
“It is not appropriate for this court to entertain these applications and they must fail,” Naidoo found. “In summary, the four applications before me fall into the category of preliminary litigation arising from criminal proceedings.”
The applications flew in the face of the well-established court rule that preliminary litigation in criminal matters was discouraged — one recently invoked in the Pietermaritzburg high court when former president Jacob Zuma demanded the right to appear for an interlocutory ruling in his arms-deal trial.
Naidoo noted that it was a well-established principle that the court charged with adjudicating the criminal trial is the correct forum to deal with challenges to the charges involved and that preliminary litigation should be discouraged.
“The hallmark of all four applications is that the accused have not yet pleaded to the charges against them, yet each seeks declaratory orders without any evidence being led against any of them,” Naidoo said.
“Each one appears to have simply ignored the provisions of section 85 and the relevant provisions of the Criminal Procedure Act,” she said, moreover without motivating why they could not raise their objections before the trial court.
Legal precedent made plain that the doors could not be closed to accused where there is a clear need to enforce a right, such as where they had been served with an unlawful warrant, but that such attempts must fail if they were clearly intended to delay criminal proceedings.
Naidoo’s ruling was not a judgment on the merits of all arguments raised by Magashule; rather, she concluded that the trial court was best placed to pronounce on his points because it would be privy to the relevant facts and circumstances.
There were, Naidoo added, so many points of dispute between the accused and the state that the matter could not be decided on papers.
Magashule argued that he could not be charged in terms of the Prevention of Combating of Corrupt Activities Act — the basis for eight alternative charges of corruption to those of fraud he faces — because while he was premier of the Free State, he was not an accounting authority and hence did not fall into the category of persons to whom the law applies.
And like Zulu, he argued that the state had failed to give him an opportunity to explain his alleged failure to report a crime, as required by section 27 of the Act, before it could charge him in terms of section 34 of the same law.
The state admitted that section 27 was not complied with, but Naidoo held that the matter was one for the trial court to deal with, and, therefore, declined to express a view on the merit of the application.
“Magashule, surprisingly, deals extensively with ‘prosecutorial misconduct’, in an application such as this, providing a great deal of irrelevant detail for present purposes,” she commented.
The suspended secretary general of the ANC faces more than 70 charges in total, and has claimed that these are politically motivated as the state has no firm evidence against him.
Sodi, who shares a defence team with Magashule, and Mokhesi argued that the state had built its cases against them on evidence given to the Zondo commission of inquiry into state capture and that this was a violation of their fair trial rights.
Sodi, accused number three in the case, contended that the state’s reliance on any of his testimony to the commission compromised his fair trial rights.
He sought an order declaring that he was excused from prosecution in terms of regulation 8(1) of the state capture regulations.
Like Mokhesi, Sodi and his company, also listed as one of the accused in the matter, complained that the evidence the state claimed to have against them had its genesis in the testimony to the commission of Mxolisi Dukoana.
Sodi claimed that Dukoana’s testimony on what he termed the “asbestos heist” hardly applied to him. And he further raised the point that he was arrested the day after his third appearance before the commission, but on a warrant of arrest signed off more than three weeks earlier.
This, he argued, showed the extent to which the state needed his self-incriminating evidence to build a case.
The state countered that there was nothing wrong with criminal prosecution arising out of a commission of inquiry like the one on state capture, because it was one of the very reasons for its existence. Nor did regulation eight offer recourse for the accused, because it did not impose a blanket ban on any evidence given at the commission to be used from criminal investigation.
Regarding Sodi, it noted that he did not incriminate himself before the commission. On the contrary, he claimed that he did nothing wrong.
The state alleged that Sodi was improperly trying to obtain a preview of the oral evidence it planned to lead against him in the trial.
Naidoo noted that the “notion of a fair trial entails fairness to both the accused and the state.”
The charges of corruption, money-laundering and fraud that Magashule and his dozen-plus co-accused face relate to a R255-million project to audit and remove asbestos roofing in the Free State while he was premier.
His application was not aimed solely at the corruption charges. If those fell, his defence team may have argued that so should the main charge of fraud, because these were based on the same contentions.