Moroadi Cholota asks court to declare Free State asbestos charges unconstitutional and invalid

22 Aug 2024

Ex-Free State premier Ace Magashule’s former personal assistant Moroadi Cholota wants charges related to the R255m asbestos saga dropped.

Moroadi Cholota, former personal assistant to corruption-accused ex-Free State premier Ace Magashule, wants the Bloemfontein High Court to declare the fraud and corruption charges against her unconstitutional and invalid. She also claims that the State’s conduct during her extradition renders the action unlawful.

Cholota has applied to the Bloemfontein High Court to have the charges against her dismissed. The matter is scheduled to be heard on Monday 26 August.

The State will refute Cholota’s claims and oppose her request that the charges be dropped.

This comes a week after Magistrate Estelle de Lange from the Bloemfontein Magistrates’ Court granted Cholota R2,500 bail after finding she was not a flight risk.

Cholota arrived at Oliver Tambo International Airport on 8 August after being extradited from the United States.

She is one of the accused, along with Magashule, in the R255-million Free State asbestos scandal. She faces five charges including fraud and corruption.

The other co-accused are businessman Edwin Sodi; former director-general of the national Department of Housing, Thabane Zulu; Nthimotse Mokhesi, Mahlomola Matlakala, Sello Radebe, Adel Kgotso Manyeki, Nozipho Molikoe, Albertus Venter, Margaret-Ann Diedericks and former Mangaung mayor Olly Mlamleli.

Among the companies charged are Blackhead Consulting, 602 Consulting Solutions, Mastertrade 232 and Ori Group.

Cholota allegedly instructed the late businessman Igo Mpambani, Sodi’s business partner, to make payments to third parties; this was seemingly done on behalf of Magashule.

In August 2015, for instance, Mpambani used some of the proceeds of the asbestos contract to settle the student fees for the daughter of then-acting high court judge Refiloe Mokoena. Her daughter had been studying at a college in the United States.

She was arrested in the US in April 2024 and a court heard that South African authorities had charged her with four counts of fraud and five of corruption.

‘State witness’

Cholota explained in a 32-page founding affidavit why she wanted the charges against her dropped.

The respondents in the case are the Directorate of Public Prosecutions Free State, the Minister of Police, and Captain Benjamin Calitz of the Hawks, who was part of the investigation team that interviewed Cholota in Baltimore, Maryland. His affidavit also served as the basis for the State’s request to extradite Cholota.

Cholota’s papers outline how she gave oral testimony before the Zondo Commission in 2019. She said she was shocked when she later heard that she would be a state witness.

“I found out that I was to be a state witness after the prosecution in the criminal asbestos project matter announced as such on national television. Prior to this televised announcement, I had never known nor been contacted by the National Prosecuting Authority or any of its prosecutors and investigators,” she said in her affidavit to the Bloemfontein High Court this week.

“I feel that it was unfair to me when the prosecutor announced in court and in front of [a] TV camera that I am a State witness without my knowledge,” she said.

“I’m confused because as a PA in the Premier’s office, I was nowhere near supply chain management of departments or the department of human settlements.

“I feel like you are ordering me to be a witness on something that I have no intimate knowledge about.”

‘Intimidation’

Cholota said she gave evidence at the Zondo Commission after former Free State economic development MEC Dukwana Mxolisi told the inquiry that Magashule asked Mpambani to pay for students’ studies, both locally and abroad. Mxolisi said Magashule acted like “Father Christmas”.

“I assisted the Commission in drawing the distinction between the bursary schemes and financial assistance schemes for students. I explained my duties within the office of the Premier,” Cholota said in her court papers, adding that Dukwana’s testimony was “rather speculative and misinformed”.

According to Cholota, in September 2021, SAPS officers and FBI agents arrived unannounced at her apartment in the US. She was taken to the Sheraton Hotel in Baltimore for a witness interview.

“On the first day, the line of questioning differed starkly from the line of questioning I had been subjected to before the State Capture Commission. This surprised me as I was under the impression that that was what I was interviewed about.

“In fact, so different was the line of questioning that it made me uncomfortable as the investigators were pressuring me to speak on facts I knew nothing about as though I did, and confirm knowledge of facts that were well beyond my station as a former PA,” her affidavit reads.

On the second day of the interview, she claims that the investigators presented her with the same facts, and when she was unable or refused to provide “useful” answers, they threatened her that if she continued “doing what she did the previous day”, they would treat her as a suspect.

“The investigators of the NPA threatened, intimidate and coerced me that if I continued not confirming facts I knew nothing of and refused to make statements on matters that I did not know anything about as a PA against Magashule, they would bring charges against me and I would be pooled together with the rest of the co-accused in the matter.”

Cholota claims her prosecution has not been brought with the aim of obtaining a conviction.

“Instead, my prosecution was brought after my subjection to threats, intimidation, coercion and mental torture and is a continuation of such aims.”

She also submitted that if the State has reasonable and probable grounds, they would have charged her along with her co-accused in 2020 and not in response to her refusal to give in to intimidation.

No basis for fraud charges

In her affidavit, Cholota claims that the Public Protector investigated the asbestos project and that she was not named or accused of impropriety, nor was there any mention that the Office of the Premier’s bursary and financial assistance scheme was improperly or unlawfully receiving gratification from the proceeds of the asbestos project.

She said she also wasn’t named in the Special Investigating Unit’s report into the matter.

She asked that “the court declare the conduct of the investigators and prosecutors in my matter as falling short of the court envisaged by the Constitution’s prescripts and declare it unconstitutional and invalid.

“Declare that my prosecution lacks probable and reasonable cause as such cause has been demonstrated as absent in every single report from State agencies.” DM

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South Africa

‘State witness’

‘Intimidation’

No basis for fraud charges