News24 | Back to the dock for Magashule’s ex-PA as new ruling dismisses special plea

• The Free State High Court in Bloemfontein has now dismissed Moroadi Cholota’s special plea.
• An initial ruling upholding the special plea was handed down in June last year.
• A new ruling was delivered on Wednesday, after the Constitutional Court sent the matter back for reconsideration.

The case of former Free State premier Ace Magashule’s ex-assistant, Moroadi Cholota, involving the asbestos removal tender saga, can finally resume.

On Wednesday, the Free State High Court in Bloemfontein handed down a new judgment on Cholota’s special plea in which she challenged its jurisdiction to try her.

This after the Constitutional Court overruled a previous judgment last month, which found in her favour on the basis of the Supreme Court of Appeal’s (SCA) May 2024 ruling that the power to request an extradition vested with the justice minister, not the National Prosecuting Authority.

The apex court sent the special plea back to the High Court to consider the remaining grounds, and this time around, it was dismissed.

A student at the Bay Atlanta University at the time, Cholota was extradited in late 2024 to stand trial alongside 17 others - including her former boss and controversial businessman Edwin Sodi - in connection with a failed R255-million project to eradicate asbestos roofing in low-income homes in the province when Magashule was leading it.

Cholota was initially positioned as a State witness. This changed after Hawks officers went to interview her in the US in 2021, and said she was uncooperative.

READ | Cholota maintains State engineered her arrest after she refused to implicate Magashule

In her special plea, which triggered a trial-within-a-trial, Cholota accused the State of punishing her for not implicating Magashule and of having “lied” or “misrepresented” to US authorities that there was reasonable and probable cause for the charges against her that she was a fugitive from justice and a flight risk, and that she was part of a syndicate.

In June last year, Judge Phillip Loubser upheld the special plea on the strength of the SCA’s decision in the case of US-based artist Jonathan Schultz, who successfully challenged his own looming extradition on charges linked to the theft and sale of raw precious metals.

At the time, Loubser said the SCA’s ruling put the matter to bed and so it wasn’t necessary to consider the remaining grounds.

On the back of the Constitutional Court’s January ruling, which followed an appeal from the State, Loubser heard arguments again earlier this month.

And in his judgment on Wednesday, he found in favour of the State.

The State called two witnesses during the trial-within-a-trial: Investigating officer Captain Benjamin Calitz and General Nico Gerber, who made up the team that went to interview Cholota in the US. The defence, meanwhile, did not call any witnesses.

On Wednesday, Loubser described both Calitz and Gerber as having “made a favourable impression on the court”.

He added:

“Their demeanour in the witness stand and the way in which they answered questions never caused the court to believe that they were on a mission to mislead the court or to tell lies,” he said, adding that a transcript of the interview that was handed up during proceedings also confirmed their version of events.

He found on a balance of probabilities that Cholota did indeed become a suspect after not implicating Magashule.

However, he added that it was not the only reason and that the State had proven there was “reasonable and probable cause” for the charges against her, honing in on Calitz and Gerber’s testimony around direct evidence found on her laptop and other devices, as well as having been implicated at the Zondo Commission.

When it came to Cholota’s position that the State had lied to the US authorities about her being a fugitive and a flight risk, meanwhile, Loubser found neither of the considerations played a part in the decision to extradite her.

Finally, he zeroed in on a forensic audit from FTI Consulting, which stated, among other things, that late businessman Igo Mpambani - who was also implicated in the scandal - “received several requests from Cholota for financial assistance for, inter alia, students, government officials and ANC delegations”.

“Although this court has not heard evidence in the main criminal trial yet, it is clear from the quoted passages in the forensic audit that Ms Cholota had requested payments from Mr Mpambani after his company had received payments for the asbestos project, while no work in the project had been done. This conduct can certainly be seen as conduct evidencing a syndicate between Ms Cholota and Mr Mpambani to facilitate kickbacks for the syndicate,” he said.

READ | ConCourt throws NPA Cholota lifeline, but slams Batohi, Chauke

Moreover, though, he stressed that this information was provided by “the forensic audit of an independent forensic entity, and not the State per se”.

“The conclusion is therefore that it cannot be said that the State had lied to US authorities in this respect,” he continued.

Speaking after Wednesday’s proceedings, NPA spokesperson Mthunzi Mhaga welcomed the judgment.

“Naturally, we are relieved because it is an affirmation of the persuasive arguments that we had presented,” he said.

Mhaga said the NPA expected that the trial would proceed on 2 March, when the main case was due to return to court, and was hopeful that issues relating to some of the other accused’s legal representation would also be resolved by then.

Were Cholota to lodge an appeal in the interim, he said, the State would mount “a vigorous argument in opposition”.

Meanwhile, Cholota’s lawyer, Piet Tibane, said they would have to consider their options.

“But we are taken aback by the sudden change in this court,” he said.