To and fro could drag out Ace case
Magashule’s assistant, who is not prepared to testify against him, may be extradited from US
Ayear 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.
“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”.
Mpambani was gunned down in his Bentley in Sandton in 2017, and the fact that a bag with about a million rand remained in the car has raised questions about the motive for the murder.
Hodes represents both Sodi and Magashule, accused number 3 and 13, respectively, and wants to have the charges against his clients withdrawn before the matter goes to trial.
The main charges against Magashule are eight of fraud and 11 of corruption, alternatively contravention of section 34(2) of the Prevention and Combating of Corrupt Activities Act.
But two weeks ago Hodes filed notice in terms of section 85 of the Criminal Procedure Act objecting to Magashule being charged in terms of this Act. He argues the Act cannot apply to his client because as a political office bearer, and not an accounting officer, he fell outside the categories of persons listed in the legislation.
Hodes contended: “Mr Magashule does not fall within that class of person so it would be irregular in our submission for him to be charged.”
He said this application should be dealt with at the pretrial stage, as it relates to the fairness of the trial.
The defence team’s reasoning is that if this application succeeded, and the charges in terms of section 34(2) could not stand, the main charge of fraud would have to fall too, as this was based on the same contentions and would have seen the state lead the same evidence.
The state’s difficulty, from the defence’s view, is that the vast majority of the 74 charges listed in the indictment relate to the awarding of the tender and to money flows between a provincial department and private companies. The prosecution will have to secure evidence of how Magashule, as the then-free State premier, directly received money and disguised the origin of it.
“In this case, if you look at the charges, you do not have that nexus,” a source close to the case said.
Further to filing the section 85 notice, Hodes on Wednesday raised another objection in court.
He said his client was not approached, as required by section 27 of the Prevention and Combating of Corrupt Activities Act, prior to his arrest, for explanation as to why he failed to report an alleged crime, nor was he given the requisite proof of an authorisation by the National Prosecuting Authority for the institution of prosecution.
“The fact of the matter is no, so the charges cannot stand. In order to be able to charge a person in terms of section 34 you have to be in a position to furnish that certificate upfront, not to say well, I’ll find it.”
Musi asked De Nysschen whether or not the accused was in fact asked for an explanation, and De Nysschen answered in the negative, adding that the state had not wanted to announce its plans to arrest.
Magashule’s indictment followed weeks of suspense as to whether the then powerful secretary general of the ANC and political enemy of President Cyril Ramaphosa would be arrested, and what the fallout would be in the factional war within the ruling party.
“My lord, we did not want to broadcast the intention to arrest certain people,” the prosecutor said.
“The main charge, the one of fraud, the accused would in any event have been arrested for fraud, the contravention of section 34 is only an alternative charge.”
He added that should the accused insist on giving an explanation, this remained an option.
But he was sharply corrected by Musi, who said the act was clear and there must first be authorisation in writing for a prosecution to be instituted in terms of section 34(2).
“You can’t just say it is an alternative charge, the fact of the matter is, it is a charge.”
De Nysschen replied that he would study the documents filed by the defence and reply formally to the objection once he had done so.
Hodes is contending that all the charges against Sodi be dropped because they are based on selfincriminating testimony to the Zondo commission, given shortly before he was arrested in September last year.
Asked by Musi whether the court could deal with this argument during trial when certain evidence against Sodi was about to be led, Hodes submitted it be dealt with prior to plea.“my submission has always been that it must be before. … The entire indictment is premised on the facts that were the subject matter of the state capture commission in relation to accused 3 and 4 [Blackhead Consulting].”
After the matter was postponed, Magashule told supporters outside court, as he has done consistently for a year now, that there was no case against him.
It could be a long while before the court pronounces on that in a matter where the sheer number of accused means scheduling dates when all legal representatives are available is difficult in itself.
In the meantime, the battle camps in the ANC will spend the next year preparing for the party’s elective conference in December 2022. Setbacks for the prosecution will mean more malaise for Ramaphosa as he is weakened by the party’s poor performance in the recent elections.
Her refusal to testify against Magashule raised the question of whether the state was in fact ready to proceed to trial