Johannesburg - Just days after the High Court in Bloemfontein made light of the fact that Ace Magashule's former PA was a phone call away, throwing out any need for extradition or deportation to secure her appearance in court for the asbestos roofs trial, the US authorities pounced on Moroadi Cholota last week in Washington and detained her - exactly as the National Prosecuting Authority (NPA) had wished.
Those in Cholota's camp have accused the NPA of reneging on an agreement made before Free State Judge President Cagney Musi in court a few days earlier on January 20. The parties had agreed that state prosecutor Johannes de Nysschen would communicate with attorney Victor Nkhwashu to secure Cholota's voluntary appearance in court.
It was expected that the agreement would see the NPA abandon its wish to bring Cholota back to the country in shackles and handcuffs. On Friday, NPA spokesperson Mthunzi Mhaga would only say: “The matter you are enquiring about has a direct bearing on proceedings that are under way in court and therefore we are unable to indulge you on it for fear of compromising pending court proceedings.”
Nkhwashu did not respond to questions. The hostile relationship between Cholota and the NPA dates back to November 2020 when De Nysschen told the court she would be a state witness against Magashule, without her knowledge. Almost a year later, in September 2021, the Hawks interviewed her for the first time in the US during a session akin to an interrogation rather than a state witness debriefing.
The room in which she was interviewed was kept cold – a tactic commonly used by the FBI to unnerve witnesses. After she complained, it was heated. During two more sessions where she alleged she was being subjected to “intimidation tactics”, the authorities also charged Cholota with fraud, corruption and money laundering.
Magashule faced the same charges relating to the R255 million contract to remove asbestos roofs in the Free State in 2014. The Hawks and the FBI wanted Cholota to implicate Magashule in wrongdoing, but she refused. From an American perspective, the FBI official who was part of Cholota’s interview was interested in the dealings between former ANC secretary general Magashule, and Cuba - a country friendly to South Africa but declared an enemy under US foreign policy.
During the court proceedings on January 20, Judge President Musi found it odd that the NPA, instead of summoning Cholota to appear in court, had opted for a costly and time-consuming extradition application. The court heard, and accepted, that Cholota was not a fugitive from the law and that she would “voluntarily” appear in court in South Africa on any date the NPA set.
In a slightly sarcastic tone, Judge President Musi repeated the submission: “She is prepared to return to SA at the request of the State.” He repeated: “The State should just request her to be here on a particular day and she will make sure that she is in SA.” De Nysschen then remarked: “That is the best news I have heard in the whole year.”
Earlier De Nysschen was tongue-tied when asked about the flailing extradition application that the NPA embarked on more than a year ago, saying that "the lady who is head of all the extradition exercise only started working on Monday and one of the other officials went on pension, so they have problems of their own“.
"We are still waiting for our colleagues in the USA. The process is still going on. With all due respect to our colleagues in America, I’m not sure why it is taking this long.“ De Nysschen continued: ”In any event, apart from the extradition, Ms Cholota’s visa has expired. So we foresee that it will be a question of either extradition or deportation, one or the other.“
Judge President Musi warned De Nysschen that the NPA faced a “dilemma” if the trial were to begin in Cholota’s absence. “You say you are ready but in fact you are not ready,” said the judge. The hearing was postponed to May 5.
Magashule had previously lost a bid to have the charges against him withdrawn for lack of evidence. He has since applied for leave to appeal the judgment in the Supreme Court of Appeal after the high court in Bloemfontein declined the application.
According to Magashule, the NPA failed to follow the proper two-pronged process in prosecuting him under the Prevention and Combating of Corrupt Activities Act. Section 27 of the statute stated that before a certificate of prosecution could be issued, the NPA should request an explanation from the applicant.