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Ace Magashule claims unlawful prosecution

Suspended ANC secretary-general Ace Magashule filed fresh papers last week in which he stopped short of applying for a stay of prosecution, citing “prosecutorial misconduct” and “unlawful prosecution”.

According to the documents, Magashule wants the Bloemfontein High Court to declare that the National Prosecuting Authority (NPA) does not “have a prima facie case against [him] capable of sustaining a successful prosecution”.

He faces fraud, corruption and money laundering charges related to a R255 million asbestos contract in the Free State in 2014.

He cites the state’s earlier “refusal” to hand him the entire docket until he approached court, and states that only on the eve of the hearing in July, “Johannes De Nysschen capitulated”. This conduct, he says, is “obstructive and antagonistic”, and contrary to the prosecutorial code of conduct.

He says the state’s decision to refer to his former personal assistant, Moroadi Cholota, as a state witness without even getting a written statement from her amplifies this prosecutorial misconduct, and is “misleading and false”.

Magashule argues that the NPA did not follow the correct two-pronged process in prosecuting him under the Prevention and Combating of Corrupt Activities Act. Specifically, section 27 states that the NPA must ask for an explanation before a certificate of prosecution can be granted.

Magashule wants the court to declare that he was not an “executive authority” at the relevant time in terms of the Public Finance Management Act. Except for being the Free State premier at the time, he argues, there is no evidence linking him to the tender process, its approval or the payments.

Additionally, he has applied for a court order notifying the state that he is entitled to be privy to the list of witnesses who will implicate him in every charge listed in the indictment before he pleads to it.

‘PROSECUTORIAL MISCONDUCT’

In a Hawks recording of Cholota’s interrogation in Washington, DC, in the US in September – made by Brigadier Nico Gerber – she questioned why she had been declared a state witness without her knowledge. The Hawks said they were unable to communicate with her at the time and later delayed travelling to the US due to bureaucratic processes.

Despite Cholota being a state witness, 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. In two more sessions where she alleged she was being subjected to “intimidation tactics”, the authorities also charged Cholota with fraud, corruption and money laundering.

NPA ASKS FOR MORE TIME

According to the judges’ directives issued on November 3, the NPA was meant to reply by December 7 and Magashule was meant to reply by December 15. On Friday, the state requested an extension to file on December 17 due to “the procurement process to appoint counsel”.

Magashule’s lawyers objected, saying the state should have first talked to the defendants to see whether they were willing to postpone. Victor Nkhwashu Attorneys asked why the state attorney had only been briefed on Monday, as the directives were issued on November 3. The lawyers said the state had failed to provide any cogent reason.

WHERE IS DUKWANA?

Magashule says his political nemesis, Mxolisi Dukwana, triggered the criminal case against him during his testimony at the Judicial Commission of Inquiry into Allegations of State Capture, but Dukwana was not listed as a witness.

Dukwana claimed Magashule had sent Cholota to businesspeople (including asbestos contractors) to request illegal money. Cholota, however, testified that the payments had been made towards bursary schemes for students.

Dukwana alleged that certain donations constituted “gratification”, but did not provide any evidence to this effect.

Magashule argues:Instead, he invited the commission to investigate.

The former secretary-general also refers to an extract from the state’s request for mutual legal assistance prepared for the US attorney-general in June, in which the Hawks refer to him as “Mr Ten Percent (10%), suspected to be involved in large-scale corruption”.

Magashule adds:I view the reference to me as ‘Mr Ten Percent (10%)’ as defamatory, uncalled for and in bad taste. It is not only an unfair characterisation, but also taints my fair trial rights, particularly the presumption of innocence. [It] makes it clear that my political status played a significant role in the decision to prosecute me, and demonstrates an ulterior motive.

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