The National Prosecuting Authority (NPA) should have taken the witness box and testified on the lawfulness of the extradition of Ace Magashule’s former personal assistant, Moroadi Cholota.
This was the argument by Cholota’s lawyer, Loyiso Makapela, before the Free State high court in Bloemfontein on Monday in a trial within a trial.
Cholota is challenging the lawfulness of her extradition from the US last year.
She is listed as accused No 17 in the corruption case, which involves her former boss and several Free State government officials accused of being linked to a corrupt scheme over a R255m tender awarded to corruption-accused businessman Edwin Sodi.
Makapela criticised the state as to why it took two police officers — Hawks major-general Nico Gerber and investigating officer Benjamin Calitz — to be witnesses in the extradition case.
The NPA should have instead taken the stand and testified because it was more involved in the extradition application, she said.
Lead prosecutor Johan de Nysschen was among NPA employees she named in court as being involved in the preparation of documents for the extradition.
“The state placed witnesses who were not relevant to the question at hand,” Makapela said.
Makapela said the NPA had no legal powers requesting US authorities for Cholota’s extradition because this power “belongs to the executive” (the justice minister).
She anchored the argument that the NPA was not empowered to make the application on a Supreme Court of Appeal in the 2024 judgment on extradition.
“The [justice] minister is central to the administration and implementation of the Extradition Act. The reciprocal obligations that arise with extradition are to be dealt with by the minister on behalf of the Republic,” the SCA judgment reads.
The SCA acknowledged the importance of the NPA’s role in providing the necessary legal papers. However, it was mentioned that the application should be signed off by a minister.
“They [NPA] could have come to the court and set the record straight and said ‘this is what we did.’”
US judge Erin Aslan of the Maryland district court approved SA’s extradition application after having found evidence provided by SA was “sufficient”.
Cholota did not take the stand and this, the NPA said, left the court with only the state’s evidence to make a ruling.
Lead prosecutor De Nysschen argued that Cholota’s defence was clutching at straws.
“I would have loved to cross-examine her,” De Nysschen said, referring to wanting to ask Cholota why she did not return to SA on her own accord.
“The very reason she did not want to testify, to put it bluntly, is it could have been a mess. There is little that the accused would have been able to explain under cross-examination.”
Judgment will be handed down next Tuesday.
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