The trial against former ANC secretary-general Ace Magashule and 16 co-accused charged with corruption relating to the R255m asbestos roofing tender in the Free State could face yet another delay.
The trial is expected to start 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 Free State High Court in Bloemfontein.
The top court, in a precedent-setting judgment on Friday, partially overturned Free State High Court judge Phillip Loubser’s court 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 did not have criminal jurisdiction to proceed with Cholota’s case.
The NPA’s extradition was unlawful because the prosecuting authority led the application and did not have 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 today when the trial starts.
“The main trial is unlikely to continue on Monday,” Cholota’s attorney Piet Tibane told Sowetan’s sister publication Business Day.
Tibane said the legal team would start Cholota’s trial-within-a-trial anew today, confident they would win the case again.
“On Monday, the trial-within-a-trial will have to start de novo [from the beginning] so that we ventilate the other grounds that we have raised. We are saying that the manner in which Cholota was extradited, her rights were violated, which, 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 businessperson Edwin Sodi.
Cholota said, despite accumulating more than R5m in legal costs, she was not willing to 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.”
University of Pretoria senior law lecturer, Llewelyn Curlewis, told Business Day the top court ordering the case back to the high court was a saving grace for the NPA to continue with prosecution despite unlawful extradition.
“The court [Constitutional Court] is not in favour of people taking procedural shortcuts to evade prosecution. I like that principal and now it’s a prosecutorial principle,” he said.
Cholota was freed based on the Supreme Court of Appeal (SCA) judgment in the case of SA fugitive Johnathan Schultz, who faced theft charges but won the case based on the unlawfulness of his extradition application. He lives and works as an artist in Las Vegas, US.
The SCA ruled that only the minister of justice and constitutional development had the power to file extradition applications.
Curlewis said the top court ordering Cholota back in the dock meant 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 transgression 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 the NPA’s condonation for the 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 in law that there is a principle a court ought not to decline to exercise its criminal jurisdiction on the mere basis that the accused’s extradition request was unlawful.
This means other accused in the same position as Schultz will not be as lucky as he in escaping prosecution based on an unlawful extradition application and mitigates the NPA’s fears.
“This principle, it seems to me, would hold for any extradition request that was made before Schultz SCA,” the judgment read.
“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 Cholota case].”
University of Johannesburg law professor Hennie Strydom said the NPA in future applications needs to 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 its approach in extradition cases and avoid cases like this in the future,” Strydom said.
NPA spokesperson advocate Mthunzi Mhaga said the state would study the impact of the court judgment on other cases.
“The task we have been given is to reflect on the implications for 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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