Having suffered several blows in high-profile cases, the National Prosecuting Authority (NPA) is under pressure to successfully prosecute the case against Ace Magashule and his co-accused facing corruption charges related to a R255m housing tender.
The controversies about the tender took centre stage at the state capture commission chaired by former chief justice Raymond Zondo that investigated irregular state tenders worth billions of rand.
Almost three years after Zondo finalised his reports, there has been a lack of convictions. The state spent almost R1bn of taxpayers’ money on the commission’s probe.
Judge Phillip Loubser of the Free State high court will this week deliver judgment in a trial within a trial initiated by Magashule’s former personal assistant Moroadi Cholota, who challenged the lawfulness of her arrest.
After the judgment, Loubser will focus on the long overdue trial against Magashule and businessperson Edwin Sodi, who are among 12 people and five companies charged with corruption relating to a tender issued by the Free State’s human settlements department in 2014 for the removal of asbestos roofing from houses.
“This will be a make-or-break case for the NPA when it comes to state capture cases,” legal analyst and Legal Practice Council deputy chair Llewelyn Curlewis said.
He said the NPA was in a battle to win public trust. The NPA has been in the spotlight after several high-profile state capture cases were thrown out by the courts.
“It is extremely important for the NPA to prove the link between the money and the corruption allegations beyond reasonable doubt. The defence will attack any documents.
— Llewelyn Curlewis, Legal Practice Council deputy chair
“The expectations are high,” he said. “Currently, everybody is losing interest in the Zondo commission’s report in the sense that they are of the opinion it was a great waste of time and taxpayers’ money because nothing has come of it so far.
“That can be exclusively placed before the doors of the NPA because they must see to it that justice gets done.”
Magashule was the premier of the Free State when the tender was awarded to Sodi’s company, Black Head Consulting, and its Diamond Hill Trading joint venture.
The NPA alleges Magashule received R10m after the tender was awarded.
Linking the R10m payment to the unlawfulness of the tender would be a crucial aspect in the trial, Curlewis said.
“It is extremely important for the NPA to prove the link between the money and the corruption allegations beyond reasonable doubt. The defence will attack any documents,” he said.
“If it is not admitted by the defence the onus is on the state to prove the link. If they cannot do that, with every single cent received by Magashule through illegal means, the court cannot convict to the amount the state claims.”
It would not be an easy win for the NPA, Curlewis said, adding: “I will not be surprised if, based on what I have seen, this might also be a red tomato on their face. If that happens, people will lose the last bit of confidence they had in the prosecution of these cases.”
The NPA is under pressure to restore public trust. Blows suffered by the prosecuting authority include the case against former Eskom boss Matshela Koko in a R2.2bn corruption matter that was struck off the roll by the Middelburg specialised commercial crimes court in 2023 due to delays.
Corruption charges against politician Zizi Kodwa and his co-accused businessman Jehan Mackay were withdrawn late last year.
Curlewis said: “The Magashule case is high stakes for the NPA.
“Except maybe a few people, the public have already lost their confidence in the NPA’s ability to prosecute these offenders.
“If they can win this one, it might restore some dignity to the NPA. If not, it will reaffirm what everybody thinks — that they do not have the resources, capacity, knowledge, skills and will power to properly prosecute.”
Speaking earlier this year, national director of public prosecutions Shamila Batohi said strides made by the NPA in crime convictions had been dulled by failure to successfully prosecute major state capture cases involving politicians.
Batohi assured the public that the NPA was working on turning the tide in its handling of state capture cases.
“People talk about the NPA these days and sadly they measure whether the NPA has been successful based on whether one politician is in an orange uniform for state capture,” she said.
“I feel very confident that this year there are going to be significant changes in terms of further enrolments.”
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