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AS IT HAPPENED | Court reserves judgment on Magashule, Sodi asbestos scam prosecution challenges

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22 February 13:07

Hodes concludes his argument.

Cassim insists that there is "probable cause" for the state to pursue Magashule.

Judge Naidoo reserves her judgment.

- Karyn Maughan 

22 February 12:56

All of this, Hodes argues, strongly supports the contention that the case against Magashule is politically motivated.

- Karyn Maughan 

22 February 12:55

Hodes also questions why, if the case against Magashule and his co-accused was built on State Capture Inquiry evidence, it was not pursued by the Investigating Directorate - which was set up to pursue State Capture cases.

He says the fact that Magashule's PA is no longer a state witness against him "must have impeded" the case against him.

- Karyn Maughan 

22 February 12:52

Hodes again reiterates Magashule's assertions that the timing of his arrest was sinister - and occurred before the NPA had actually completed its investigation.

- Karyn Maughan 

22 February 12:49

Hodes denies the NPA's allegations that Magashule's affidavit contained vexatious and irrelevant assertions - and says the court papers contain the "truth".

Magashule says the NPA's bid to remove his allegations of ulterior purpose and dishonesty against the state are designed to "suppress" his claims that his prosecution was politically motivated.

- Karyn Maughan 

22 February 12:40

Hodes now seeking to raise doubts about the state's accusations that Magashule was guilty of corruption - because his PA solicited funds for school fees, travel expenses and devices, allegedly from the asbestos scam accused.

"This is why we need to know what the case is," Hodes says, before adding that it was "commendable" that people agreed to sponsor education costs.

He says there is no evidence about what was done in return for these sponsorships.

- Karyn Maughan 

22 February 12:29

Hodes accuses Cassim of failing to address Magashule's argument that he was not given the chance to explain why he did not report the alleged asbestos scam corruption before it charged him under PRECCA - as he maintains it was legally obliged to do.

- Karyn Maughan 

22 February 12:26

Hodes says Cassim has referred to documents that are not before the High Court. He cannot do so, he says - and objects to Cassim handing up documents that are part of the criminal docket against Magashule on the basis that this is irregular.

- Karyn Maughan 

22 February 12:23

Hodes now responds to Cassim's arguments.

- Karyn Maughan 

22 February 12:23

Cassim repeats his assertions that Magashule's lawyers have not read the docket of evidence and the charge sheet against him. In that context, he asks, "how dare they" ask the High Court to rule that there is no prima facie against him. 

- Karyn Maughan 

22 February 12:16

Cassim says that, if Magashule claimed not to know what was happening with the alleged asbestos scam, this would impact on his leadership of the Free State, as its Premier.

- Karyn Maughan 

22 February 12:14

In response to the misconduct accusations levelled against the NPA prosecutors involved in the magashule case, Cassim quotes Judge Piet Koen's ruling on the dismissal of former President Jacob Zuma's application for the removal of state advocate Billy Downer.

That ruling states the following about public prosecutors: "Their professional enthusiasm in the prosecution they pursue, believing passionately in their cause and pursuing it with all the zest and zeal of a dedicated and conscientious prosecutor presenting the case of the state and the general populous, and to the extent being perceived as not independent and objective, does not result in a lack of title to prosecute".

- Karyn Maughan 

22 February 12:09

Cassim also denies claims by Magashule's lawyers that he has been charged under the PFMA.

He says no such charge exists.

- Karyn Maughan 

22 February 12:06

Cassim now slams Magashule's lawyers for accusing the NPA of dishonesty for its treatment of Magashule's PA Cholota. In particular he is unhappy about their assertions that:

"Of grave concern is what would appear to be dishonesty and the misrepresentation of facts by Advocate JM De Nysschen and Adv. Navilla Somaru, who are officers of the Court and senior members of the NPA.

"Such conduct is not only unbecoming and worthy of serious censure, but also vitiates the prosecution against me". Cassim says there is no evidence to back this claim up.

- Karyn Maughan 

22 February 12:02

The NPA contends that none of the orders that Magashule is seeking "may completely be determined by this Court of this time".

It says multiple courts have advised "against the premature determination of preliminary questions in criminal proceedings and the consideration of questions of admissibility and fairness of a trial by a court other than the trial court, which is what Mr Magashule calls upon this Court to do".

- Karyn Maughan 

22 February 11:54

Cassim says that the R230 million asbestos contract was "not small change" - and says it was a clear fraud.

He says the fact that work paid for by the contract actually cost R21 million requires an answer from Magashule - because, as the Premier under whose watch this contract was concluded, the "buck stops with him".

He points to allegations that the proceeds of this dodgy deal flowed from Magashule's office to former acting judge and Gupta ally Refiloe Mokoena. This money was used to pay for Mokoena's daughter's university fees.

This requires an answer from Magashule, he says.

- Karyn Maughan 

22 February 11:43

Cassim accuses Magashule's lawyers of not properly reading the docket of evidence against him, or the charge sheet. He accuses them of being opportunistic in how they have portrayed the charges against him.

- Karyn Maughan 

22 February 11:40

22 February 11:38

Advocate Naseer Cassim SC now argues for the NPA.

He says Hodes has spent a chunk of his time arguing about issues that are actually "moot", and says Magashule's demands to know whether his PA is a defence or state witness are now irrelevant, because she will be charged as an accused.

- Karyn Maughan 

22 February 11:36

Case resumes. 

Hodes is adamant that there is no prima facie case against Magashule - and contends that the state should be compelled to provide him with a list of witnesses that implicate him directly.

- Karyn Maughan 

22 February 11:13

In court papers, Magashule's lawyers say he "specifically refers to Mr Ramaphosa's renewed vigour concerning the step-aside rule on about 23 August 2020 and Mr Magashule having been arrested less than three months later on 3 November 2020. This does not appear to be a coincidence".

"Mr Magashule makes the point in his founding affidavit that the President is specifically named in the founding papers and that the President wields influence throughout the Republic of South Africa, including the NPA".

- Karyn Maughan 

22 February 11:03

We adjourn for tea.

The NPA will argue after the break. The state is seeking a strike out of Magashule's claims of dishonesty against the NPA in relation to its handling of Cholota's evidence.

- Karyn Maughan  

22 February 10:55

Hodes refers to the fact that, when the state was asked by the Judge President about whether they had followed the prescripts of the Prevention and Combatting of Corrupt Activities Act before charging Magashule, prosecutor Johannes de Nysschen stated that the state did not "want to broadcast" its intention to charge the ANC Secretary General by seeking his explanation for why he had reported alleged corruption.

Hodes is adamant that this is a PRECCA requirement.

- Karyn Maughan 

22 February 10:44

Hodes now referring a 22 October 2021 interview conducted in Washington between the authorities and Cholota, which ended with an apparent agreement that she would meet with police the following day. He says it is unclear what exactly happened after that. 

- Karyn Maughan 

22 February 10:41

Hodes now reading a 18 November 2020 email sent by prosecutor Johannes de Nysschen to Magashule's PA Moroadi Cholota about her potential evidence in Magashule's trial, which he said would essentially be a repeat of the evidence she gave at the State Capture Inquiry.

"Your testimony will revolve around the so-called asbestos matter," de Nysschen told Cholota.

"I understand your fear for having to testify about something that you do not have the full details about, but please rest assured, you are but one of a number of witnesses in a much bigger picture."

Cholota replied: "I hereby acknowledge your correspondence with appreciation. I thank you for the clarification in this regard. It is loud and clear that I do not have any choice. I can assure you my 100% cooperation in this matter, solely because I respect the law."

Hodes now uses this exchange to argue that it is "clear" that Magashule was arrested before the case against him had been finalised - and before Cholota, who the NPA said was a state witness, had actually made a statement to the authorities.

- Karyn Maughan 

22 February 10:36

As his legal representative makes the case for the charges against him to be thrown out of court, Magashule who is sitting in the court gallery is eagerly following the proceedings.

He has copies of the arguments in front of him and turns to each page referenced by his counsel.

- Juniour Khumalo

22 February 10:34

In court papers, Magashule and his lawyers argue that his "political activity appears to be the ulterior purpose behind the decision to prosecute him" and contend that his "criminal prosecution has neutralised him politically, which appears to have been the objective".

The NPA has taken serious exception to these accusations and want them "struck" or removed from the court record.

- Karyn Maughan 

22 February 10:32

Magashule said: "Donor funding requests and ultimate funding for educational initiatives concerning students from the Free State were certainly not unique during my tenure as Premier."

"In fact, a significant portion of my salary for my services as the current Secretary-General of the ANC was utilised to satisfy numerous debit orders by various educational and charitable causes."

He adds: "Other than me being the Premier of the Free State at the time, there is no evidence linking me to the tender process, the approval thereof, or the payments made by the Free State government pursuant thereto… In terms of my duties as a Premier, I was not even remotely nearer to any initiation, adjudication and awarding of any tender granted service providers."

- Karyn Maughan 

22 February 10:30

According to the indictment against him, Magashule's alleged take of the R255 million tender came in the form of school tuition for the daughter of Gupta ally Refiloe Mokoena, electronic tablets, and R250 000 for the travel expenses of a delegation to Cuba.

Those alleged gratifications were given through payments made by murdered businessman and asbestos tender beneficiary Igo Mpambani.

Magashule has however denied that he received any kickbacks from the asbestos tender and contends that evidence led at the State Capture Inquiry revealed that the payments in question were contributions towards bursary schemes or financial assistance for students in South Africa and abroad.

- Karyn Maughan 

22 February 10:29

Magashule and his co-accused have been charged with fraud, corruption, theft and money laundering, among other charges, linked to a R255 million contract for the assessment and removal of asbestos from roofs and/or housing in some of the Free State's poorest areas. At the time that the contract was concluded, Magashule was the Free State Premier.

That 2014 contract, the state alleges, would be defined by rent-seeking and corruption and would ultimately result in two subcontracted companies being paid R21 million to do the work, which was never actually completed. The rest of the money was allegedly pocketed by the accused.

- Karyn Maughan 

22 February 10:25

Magashule also asked the High Court to grant an order declaring that he is "entitled to know the case that he is required to meet before he pleads to the envisaged charges".

While the state has admitted that Cholota is not a state witness against Magashule, his PRECCA challenge remains - as does his PFMA application. Magashule persists in his assertions that there is, in fact, no case against him.

- Karyn Maughan 

22 February 10:20

Hodes will this morning also argue that the High Court should find that Magashule was not an "executive authority" at the relevant time "as defined in section 1(b) of the Public Finance Management Act 1 of 1999" - meaning that he could not be held accountable for the asbestos scam looting that took place while he was Free State Premier.

Magashule further wants the High Court to find that "the State does not have a prima facie case against the Applicant/Accused 13 capable of sustaining a successful prosecution" and to compel the NPA "to disclose the list of witnesses which specifically implicate [Magashule] in any and all of the charges as per the indictment".

- Karyn Maughan 

22 February 10:19

Magashule wants the High Court to rule that: the State has not complied with section 27 of the Prevention and Combatting of Corrupt Activities Act 12 of 2004 - in that he was not given the opportunity to respond to the allegations against him before he was charged.

Hodes is adamant that this is a requirement before an accused is charged with failing to report corruption - as Magashule has been.

He also seeks an order that his former PA Moroadi Cholota "was never a State witness, alternatively is a defence witness" - a fact that the state has admitted.

It is now seeking to charge Cholota alongside Magashule and is pursuing her extradition from the US, where she is studying.

Magashule wants the High Court to find that the "State's conduct, insofar as Ms Cholota is concerned and/or the manner in which the prosecution has been conducted to, prima facie, constitute prosecutorial misconduct".

- Karyn Maughan 

22 February 10:05

Suspended ANC Secretary General Ace Magashule's counsel Laurence Hodes SC will this morning argue his multiple challenges to the validity of the state's case against him - some of which address what Magashule contests are serious procedural irregularities with his prosecution.

He insists that, on an evaluation of the state's docket against him, there is no case for him to answer.

- Karyn Maughan.

22 February 10:02

Magashule is making his way into court where his legal representatives are expected to argue that there are no charges against him and that it is procedurally incorrect to charge an alleged beneficiary along with those accused of committing the corruption.

- Juniour Khumalo

<p>Magashule is making his way into court where his legal representatives are expected to argue that there are no charges against him and that it is procedurally incorrect to charge an alleged beneficiary along with those accused of committing the corruption. </p><p>- Juniour Khumalo</p>

22 February 09:46

Day two of the pretrial hearings into the R255million asbestos corruption case are set to get underway at 10am.

There is not much police presence outside the court precinct this morning. Suspended ANC secretary-general Ace Magashule has arrived and will be walking into the Bloemfontein High Court soon.

- Juniour Khumalo

22 February 09:41

22 February 08:51

Sodi seeks acquittal on basis of Zondo evidence – NPA says case is ‘hopeless'

- Suspended ANC Secretary-General Ace Magashule and businessman Edwin Sodi, who have both been charged in connection with the "asbestos heist" prosecution, have both launched applications that attack the strength of the evidence against them.

- On Monday, lawyers for Sodi and his co-accused Thabane Zulu and Nthimotse Mokhesi argued that the NPA's case against them was unlawfully founded on self-incriminating evidence that they gave at the Zondo commission.

- Counsel for the NPA, Naseer Cassim SC, rubbished these arguments – and stressed that they should be made during the actual asbestos scam trial and not outside of it.

READ MORE

21 February 14:57

Ace Magashule's challenge to the case against him will be heard tomorrow.

We adjourn until 10am.

21 February 14:57

Maakane now replies to Cassim's submissions, which he says "clearly do not address" the arguments made by Zulu.

He says PRECCA clearly requires that a corruption accused official must be given an opportunity to respond to the allegations made against him or her.

Judge Naidoo points out that Zulu is facing common-law fraud and corruption charges as well - meaning that, even if the PRECCA charges against him were dropped, there would still be a case to which he would have to answer. 

- Karyn Maughan 

21 February 14:49

Cassim again urges Judge Naidoo to dismiss Zulu's application.

- Karyn Maughan 

21 February 14:46

Cassim: "There is no meat in this application". He again argues that Zulu, like Sodi, is using his resources to try to avoid his criminal trial by launching an ill-founded application to undermine his prosecution.

He says Zulu can explain the reason that he received allegedly corrupt payments - but he needs to do so in his trial. In his evidence at the Zondo Inquiry, Zulu claimed that the money he received from Sodi was for a tab he had racked up at Zulu's Pietermaritzburg entertainment venue, TZ Lounge.

He said he delivered liquor to Sodi over a period of time in 2015. The arrangement was that Sodi would make a payment at a later stage. He said Sodi made the R600 000 payment to the Range Rover dealership on his instructions.

- Karyn Maughan 

21 February 14:45

Suspended Deputy Convener of the ANC Ehlanzeni Region in Mpumalanga, Ngrayi Ngwenya has also just joined the growing number of supporters who have come to support Magashule at the Bloemfontein High Court.

- Juniour Khumalo

21 February 14:37

Maakane concludes his argument.

Advocate Naseer Cassim responds for the NPA. Cassim points out that Zulu has been charged with corruptly accepting R600 000, as well as fraud.

- Karyn Maughan 

21 February 14:35

Maakane argues that the charges and alternative charges against Zulu "revolve around the contravention of PRECCA". As a result, Zulu is entitled to challenge the basis of the charges against him and thus avoid a "lengthy trial".

- Karyn Maughan 

21 February 14:34

Maakane says Zulu was not given the chance to respond to the allegations of corruption made against him - an omission that he, like Magashule, argues invalidates the PRECCA charges that the state has pursued against him.

The NPA argues that, if it had alerted Zulu to the fact that he was facing charges under PRECCA, he would have fled the country - or launched legal applications to block the case against him from proceeding. Maakane rejects that argument and says the state's failure to comply with PRECCA was deliberate and driven by ulterior purposes.

- Karyn Maughan 

21 February 14:33

Maakane says the state has conceded that there "has not ben compliance" with section 27 of PRECCA, which requires that: "The institution of a prosecution for an offence referred to in section 17(1), 33(7) l b or 34(2), must be authorised in writing by the National Director, a Deputy National Director of Public Prosecutions or the Director of Public Prosecutions concerned and only after the person concerned has been afforded a reasonable opportunity by the investigating or prosecuting authority, as the case may be, to explain, whether personally or through a legal representative: 

1. (a) in the case of section 17( l ) , how he or she acquired the private interest concerned;

2. (b) in the case of section 23(7)(b), how he or she acquired the property or resources concerned; or

3. (c) in the case of section 34(2), why he or she failed to report in terms of section 34(2).

- Karyn Maughan 

21 February 14:28

In an argument that will be repeated by Ace Magashule's advocate Laurence Hodes, Maakane contends that the state did not follow proper processes when it charged Zulu under the provisions of the Prevention and Combating of Corrupt Activities Act 12 of 2004 (PRECCA).

- Karyn Maughan 


21 February 14:20

Judge Naidoo asks Maakane a crucial question: is this court not being asked to decide the challenge bought by Zulu, Sodi and Mokhesi "on the papers", in a way that could fetter the trial court in its handling of this case? Maakane, like Hodes, contends that the courts should intervene when doing so could stop an ill-founded case from proceeding.

- Karyn Maughan 

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