The National Prosecuting Authority’s (NPA’s) lead in the application for the extradition of Ace Magashule’s former personal assistant, Moroadi Cholota, from the US to face corruption charges, has been found unlawful.
Judge Phillip Loubser of the Free State high court on Tuesday ruled Cholota’s extradition from the US was unlawful because of the administrative processes followed. He found the NPA’s filing for the extradition instead of the justice and constitutional development minister tainted the extradition’s lawfulness.
Cholota had contested the lawfulness of her arrest in the US last year to stand trial as accused number 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 businessperson Edwin Sodi.
Cholota’s lawyer, Loyiso Makapela, had argued in the trial within a trial that the NPA had no legal powers requesting US authorities for Cholota’s extradition because that power “belongs to the executive [the justice minister]”.
She anchored the argument that the NPA was not empowered to make the application on a 2024 Supreme Court of Appeal 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.
In his judgment, Loubser said: “This court does not need to go any further in trying to determine who made the decision [for extradition]. It was not the minister in his capacity as the relevant member of the executive but the National Prosecuting Authority. This is underscored by the various communications between the US department of justice and the NPA.
“Consequently, I have to find the prosecution has not proven beyond reasonable doubt or at all that there was a valid and lawful request from SA for the extradition of Cholota from the US. If there was not a lawful request for extradition then the extradition was without any basis and therefore unlawful.”
Loubser declared Cholota’s extradition unlawful, adding that the request for extradition was pinned on the executive power.
“This court does not have jurisdiction to trial Cholota on the offences she is charged with. Ms Cholota you are free to leave.”
Last year, US judge Erin Aslan of the Maryland district court approved SA’s extradition application after having found that evidence provided by SA was “sufficient”.
In her judgment Aslan said: “Cholota is alleged to have knowingly engaged in this scheme by using her government position to facilitate corrupt financial transactions.
“SA’s extradition request is accompanied by indictments, sworn statements and affidavits, a forensic audit, emails and many other documents, all of which amply support a finding of probable cause to believe Cholota is the individual named in the pending SA indictment and that she committed the charged offences.”
This is the first win of an accused in the case.
The trial had been delayed as several accused contested the lawfulness of their arrest in the case.
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