The trial against former ANC secretary-general Ace Magashule and 16 co-accused charged with corruption relating to a R255m asbestos roofing tender in the Free State could face yet another delay.
The trial is expected to start on Monday but could face more delays as his former personal assistant Moroadi Cholota is expected to initiate a trial within a trial after the Constitutional Court ordered her matter to be remitted to the high court in Bloemfontein.
The top court, in a precedent-setting judgment on Friday, partially overturned Free State high court judge Phillip Loubser’s order setting Cholota free on the basis that her extradition from the US in 2024 was unlawful.
The court said the fact that the extradition was unlawful did not mean the high court lacked criminal jurisdiction to proceed with Cholota’s case.
The extradition was unlawful because the prosecuting authority led the application and lacked a sign-off from the national executive.
The top court ruled that the national executive, not the NPA, has the legal authority to file for extradition applications to foreign states.
Cholota returns to the dock on Monday when the trial starts.
“The main trial is unlikely to continue on Monday,” Cholota’s attorney, Piet Tibane, told Business Day.
Tibane said the legal team will start Cholota’s trial within a trial anew on Monday, confident they would win the case again.
“On Monday, the trial within a trial will have to start [anew] so that we ventilate the other grounds that we have raised. We are saying that in the manner in which Cholota was extradited, her rights were violated. That on its own should be able to get our client off the hook. She will walk free again,” he said.
Loubser, when setting the trial for January 26, took a tough stance against delays and said he would not accept the matter being further stalled. The trial has suffered delays for more than five years due to interlocutory applications by the accused, including business person Edwin Sodi.
Cholota said that despite accumulating more than R5m in legal costs, she would not back down from fighting in court.
“I am not willing to stop the fight for my freedom. I will fight for my rights. I am grateful to everyone supporting me.”
Llewelyn Curlewis, a University of Pretoria senior law lecturer, told Business Day that the top court ordering the case back to high court is a reprieve for the NPA to continue with prosecution despite the unlawful extradition.
“The court [Constitutional Court] is not in favour of people taking procedural shortcuts to evade prosecution. I like that principle, and now it’s a prosecutorial principle,” he said.
Cholota was freed based on the Supreme Court of Appeal judgment in the case of South African fugitive Johnathan Schultz, who faced theft charges but won due to the unlawfulness of his extradition application. He lives and works as an artist in Las Vegas, US.
The Supreme Court of Appeal ruled only the minister of justice & constitutional development had the power to file extradition applications.
Curlewis said that the top court ordered Cholota back in the dock means not everyone extradited unlawfully can “use it as a free get-out-of-jail ticket”.
“There would have been a floodgate and opening of past transgressions by people who have been convicted as a result of extraditions that might not have been lawful,” he said.
The NPA in the top court sought an order to limit the retrospectivity of the Schultz judgment.
Schultz remains free because the top court refused to condone the NPA’s late filing in the case.
The NPA took more than three months to file for appeal in the Schultz matter and argued the SCA judgment would lead to the escape of 89 of the country’s “most serious fugitives”.
The judgment penned by justice Leona Theron, however, stipulated that in law there is a principle that a court should not decline to exercise its criminal jurisdiction on the mere basis that the accused’s extradition request was unlawful.
This means accused in the same position as Schultz will not be as lucky as he in escaping prosecution based on an unlawful extradition application, mitigating the NPA’s fears.
“This principle, it seems to me, would hold true for any extradition request that was made prior to Schultz SCA,” the judgment reads.
“Accordingly, even without the order sought by the NPA to limit the retrospectivity of Schultz SCA, the harm they fear to the administration of justice is largely, if not completely, ameliorated by this court’s findings [in the Cholota case].”
University of Johannesburg law professor Hennie Strydom said the NPA in future applications should follow procedure because the extradition law, which was a grey area, has been clarified.
“Now we have certainty about the role the executive has to play and what the role of the NPA is. The NPA will now have to re-strategise their approach in extradition cases and avoid cases like this in the future,” Strydom said.
NPA spokesperson advocate Mthunzi Mhaga said the state will study the impact of the court judgment on other cases.
“The task we have been given is to reflect on the implications on other matters that may be affected. It is now settled by law that only the national executive can formally make a request. It is a task that we believe we are capable of discharging. It will not be an easy one,” he said.
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