IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between:
THE STATE
and
NTHIMOTSE MOKHESI
MAHLOMOLA JOHN MATLAKALA
PHEAGANE EDWIN 5001
BLACKHEAD CONSUL TING (PTY) LTD
(Registration number 2011/011664/07)
As represented by accused 3
DIAMOND HILL TRADING 71 (PTY) LTD
(Registration number 2012/100469/07)
As represented by Lindikhaya Mpambani
605 CONSUL TING SOLUTIONS (PTY) LTD
(Registration number 2014/123768/07)
As represented by Michele Anita Mpambani
SELLO JOSEPH RADEBE
MASTERTRADE 232 (PTY)L TD
(Registration number 1999/013675/07
As represented by accused no 7
ABEL KGOTSO MANYEKI Reportable/Not reportable
Case number: 45/2021
1st Accused
2nd Accused
3rd Accused
4th Accused
5th Accused
6th Accused
7th Accused
8th Accused
9th Accused
ORI GROUP (PTY) LTD
(Registration number 2012/067835/07)
As represented by accused 9
THABANE WISEMAN ZULU
SARAH MATAWANA MLAMLELI
ELIAS SEKGOBELA MAGASHULE
NOZIPHO BELINA MOLIKOE
THABISO MAKEPE
ALBERTUS VENTER
NOMALANGA MOROADI SELINA CHOLOTA
MARGARET-ANN DIEDRICKS 2
10th Accused
11th Accused
12th Accused
13th Accused
14th Accused
15th Accused
16th Accused
17th Accused
1 ath Accused
Neutral citation: S v Mokhesi and 17 Others (45/2021) [2025] ZAFSHC 164 (3 June 2025)
Coram: Loubser J
Heard: 5, 6, 7, 8, 14, 15, 21, 22 & 26 May 2025
Delivered: 3 June 2025
Summary: Trial within a trial -extradition -special plea -jurisdiction -court has no
jurisdiction to try her on the offences she is charged with, due to her unlawful extradition
from the United States of America
3
ORDER
1 The extradition of Ms Cholota from the United States of America to the Republic
of South Africa is declared to have been done unlawfully for want of a valid and lawful
request for her extradition by the South African executive power.
2 Consequently, this Court does not have jurisdiction to try Ms Cholota on the
offences she is charged with.
3 Ms Cholota is free to go.
JUDGMENT IN THE TRIAL WITHIN TRIAL
LoubserJ
[1] The Court will now proceed to deliver judgment in the trial within a trial held
pursuant to the Special Plea raised by Accused no 17, Ms Nomalanga Cholota, to the
effect that this Court does not have the necessary jurisdiction to try her on the charges
levelled against her. The principal matter before the Court is the long awaited trial of 18
accused in relation to what has become known in the public eye and the media as the
Free State Asbestos Scandal, which was perpetrated some 10 years ago. The public
interest in the matter on a wide scale was no doubt fuelled by the fact that the erstwhile
Premier of the Free State, Mr. Ace Magashule, features as one of the accused in the
matter. Miss Cholota was his personal assistant at the time. All the accused are charged
with multiple counts of fraud, corruption , money laundering and alternative counts thereto.
All the accused have pleaded not guilty to all those charges, and they are fiercely
contesting the accusations against them.
[2] The presence of Ms Cholota in the Court to face the charges against her, is the
result of an extradition order handed down by the Court in the United States of America
and the Deputy Secretary of State at the end of July 2024. At the time, she was resident
in the USA where she was furthering her studies at a university. In this Court, Miss
Cholota pleaded not guilty on all the charges on 16 April 2025 on the basis that her
extradition to South Africa was unlawful. As a result, this Court is precluded from trying
4
the offences with which she is charged, as the unlawfulness of the extradition renders the
jurisdiction of the South African criminal court void, she pleaded. This plea of no
jurisdiction was presented in terms of s 106(1 )(f) of the Criminal Procedure Act 51 of 1977
(CPA), which provides that an accused may plead to a charge that the Court has no
jurisdiction to try the offence with which she is charged. This special plea was reduced
to writing and handed in as exhibit 5. I will return to exhibit 5 at a later stage when the
specifics contained therein are dealt with.
(3] Now it is established law in our country that if there were unlawful or improper
conduct on the part of the organs or the functionaries of the South African State in foreign
territory aimed at securing the presence of an accused in South Africa, the South African
Courts are precluded from trying anyone for crimes committed within its borders. See in
this respect S v Ebrahim1 and S v December.2 For this reason, this Court directed that a
trial within a trial be held first to establish whether there is any merit in the special plea of
Ms Cholota.
[4] In a trial within a trial, the onus of proving beyond reasonable doubt that the court
has jurisdiction, rests on the State. This has been the position since R v Radebe.3
Consequently , the prosecution opened the proceedings in the trial within a trial by handing
in a bulky file containing mainly documents relating to the extradition in the USA and
events related to it. This file was handed in without any objection and was accepted by
the Court as exhibit 9. Of particular interest in exhibit 9 is the Memorandum Order and
Certification by the United States District Court for the district of Maryland, presided over
by a Magistrate Judge filed under tab E, and accompanied by the formal extradition order
issued by the Deputy Secretary of State of the United States in Washington on 31st July
2024. In terms of the order Ms Cholota is extradited to South Africa to stand trial for the
offences of fraud as charged in counts 3, 4, 5 and 6 only, and corruption , as well as the
specified alternatives to the corruption charges, for which she is so charged. And then:
'Extradition is not granted for the offences of fraud as charged in counts 1, 2, 7 and 8, nor
for the specified alternatives to any of the fraud charges, nor for the offences of money
laundering .'
[5] In addition, the State called two witnesses to testify in the trial within a trial,
namely Capt. Calitz and General Gerber, both attached to the Serious Corruption
1 S v Ebrahim 1991 (2) SA 553 (A).
2 S v December 1995 (1) CLR 438 (AD)
3 R v Radebe 1945 AD 589.
5
Investigation Unit of the Directorate for Priority Crime Investigation, more commonly
known as the Hawks. After they had testified, the Sate closed its case. To the surprise of
many, the case for Ms Cholota was then also closed without her presenting any evidence
under oath or the calling of any witnesses to testify on her behalf.
[6] Before the trial within a trial, the accused all pleaded to the charges against them.
The following charges were put to Ms Cholota, namely Counts 1 to 8 (fraud) and the
alternatives thereto of theft and attempted theft, Count 15 (corruption) and two
alternatives of also corruption, Count 16 (corruption) and the first alternative thereto of
corruption, Count 17 (corruption) and the alternative thereto of corruption, Count 18
(corruption) and the first alternative thereto of corruption, and Count 19 (corruption) and
the first alternative thereto of corruption. At the hearing of final submissions in the trial
within a trial, the prosecution conceded that Ms Cholota should not have been required
to plead to Counts 1, 2, 7 and 8 as well as the alternative counts to Counts 3, 4, 5 and 6.
It undertook to stop the prosecution as far as these counts are concerned. Although it
remains a mystery to this Court why the counts in question were put to accused 17 at all
in view of the terms of the extradition order, it will not be necessary for the prosecution to
stop the prosecution in relation to those charges. This is so because it speaks for itself
that this court does not have the necessary jurisdiction to try Ms Cholota on counts 1, 2,
7 and 8, nor for the specified alternatives to Counts 3, 4, 5 and 6 in any event. At the end
of this judgment, the court will make the appropriate order in this respect. By virtue of the
provisions of s 106(4) of the CPA, the accused will not be entitled to demand that she be
acquitted or convicted on those charges because she had pleaded to them.
[7] The result is that the special plea of no jurisdiction pleaded by Ms Cholota is now
confined and limited to only the question whether this court has the jurisdiction to try her
on counts 3, 4, 5 and 6 as well as all the counts of corruption and the alternative counts
to the corruption counts. The first step in determining this question, is to take a close look
at the special plea filed on behalf of Ms Cholota in the form of exhibit 5.
[8] In exhibit 5, Ms Cholota raises the following grounds to demonstrate that her
extradition to South Africa was unlawful:
a) The State lied to or misrepresented to US authorities that there was reasonable and
probable cause for the charges brought against her. She was charged after she would not
implicate Mr Magashule (accused no 13) during a witness interview with the State's
investigators in Washington on 21 and 22 September 2021. The State itself informed the
Constitutional Court, in a sworn affidavit deposed to by one of the investigators, Captain
6
Calitz, that 'the fact that Ms Cholota did not attribute certain instructions to her former boss
has the result that she was then treated as a suspect in relation to some of the same charges
that her former boss, Mr. Magashule , was facing.' The charges against Ms Cholota were
simply a follow through of the threat the investigators had made against her that she would
be charged if she did not cooperate with them. The State does not deny the threats, nor
that they were made, the State simply alleged that the threats made were fair warning, as
appears from the State's answering affidavit in bail proceedings in August 2024. Further,
the evidence will show that there was never any reasonable or probable cause for the
charges against accused 17 and the intimation to US authorities by the State was unlawful
and false.
b) The State lied or misrepresented to US authorities that accused 17 was a fugitive
from justice. The basis for the request for extradition made to the United States by the State
was mainly the fact the accused refused to or was not returning back to the country to face
trial. This information was proven to be false during the opposed bail proceedings on 14
August 2024. The Magistrate found that there was no evidence to prove that the accused
had ever been contacted by the State and informed of a hearing date and requested to
return to the country to attend court on the hearing date. In this respect the Magistrate had
the following to say:
'She was a resident and a student in the United States at all times. There is no evidence that it was
difficult to get hold of her when she was needed. It appears that there was regular communication
between her and the State and her previous legal representative and the State to a point, and then
the legal process with regard to her came to a standstill for quite a while. At one state her address
was apparently not known to the authorities in the United States but she was also located in order
to start extradition proceedings. The applicant indicated that she was at all times still a student at
the University attending classes. I do not have any evidence form the State that there was an
instruction issued that she must inform the investigating officer of any change of residential address
if she does that.'
Further, the accused no 17 had previously demonstrated that she obeyed court or legal
summons when she had travelled back from the United States to South Africa to give
testimony at the Zondo Commission in December 2019. The State lied to or misrepresented
false information to US authorities that accused 17 was refusing to come back to the country
and face the charges, and needed to be extradited.
c) The State lied to or misrepresented to US authorities that Ms Cholota was a flight risk
with connections in Kenya. The state prosecutor, Adv. De Nysschen , deposed to a sworn
affidavit under oath, which was submitted to US authorities as a supplement to the report
for extradition. Therein, he informed the US authorities that accused 17 was a flight risk,
7
and that she had connections in Kenya:
'She will, in all probability apply for bail which may be opposed by the prosecution , due to the
possibility of her b.eing a flight risk, her connection in Kenya and the outcome of the extradition.
Ordinarily in extradition proceedings in the US, fugitives or accused persons are released on bail
pending the extradition hearing. Ms Cholota was forced to abandon her pursuit of bail, as US
authorities presented to the US District Court that she was a flight risk with connections in Kenya.
The Magistrate in South Africa noted the following in her judgment in the bail proceedings: 'The
defence offered an explanation why they abandoned her bail application in the United States
indicating that there were false allegations made against her about her connections in other
countries. This was not disputed by the State although the State was given the opportunity to do
so.'
As a result, Ms Cholota abandoned the bail application in the US as she could not defend
herself against the false claim that she had connections in Kenya. The State later claimed
that it was mistaken that she had Kenyan connections , and had only assumed this due to
the fact that she had three layovers in Kenya while flying to other destinations. The US was
never appraised of this mistake nor the layovers. In another affidavit under sworn oath, the
State claimed that it had made the above mistake because the accused has a child in
Nigeria and that they had mistook Nigeria for Kenya.
d) The State lied to US authorities that accused 17 was part of a syndicate with Mr.
Mpambani and facilitated kickbacks for this syndicate. On even the worst cursory reading
of the charges against accused 17, it is patently clear that accused 17 was not part of any
syndicate. No such allegations appear in the amended charge sheet filed by the State with
the Free State High Court, nor evidence levelled against accused 17. It is clear that such
information was only given to US authorities to bolster their unlawful quest for extradition by
any means: legal or otherwise. The judgment by Hefer AJ in the Free State High Court is
thus instructive and warrants presentation before this Honourable Court.
'(164] It can be taken as a fact that the information provided by the State had been incorrect. More
importantly , upon the most cursory reading of the judgment of the Magistrate , Judge E Asian
presiding over the extradition hearing, it is clear that the entire basis of the extradition proceedings
was information that the State had provided on the applicant. The US did not conduct its own
separate investigation or confirmation of the facts. It relied solely on the accuracy and veracity of
information given to it by the State.
(165] It is patently clear that the State is therefore to be blamed for putting this incorrect information
before court during the extradition proceedings. The State should have made certain of its facts.
(166) I agree with the submissions by Mr Makapela to the effect that the State would provide false
8
incorrect information to authorities of another country concerning a South African citizen presents a
serious public interest concern and has serious implications on the interest of justice. I also agree
with his submission that the above conduct by the State grossly infringes on international law and
constitutional law. '4
What appears pertinently clear is that it is undeniable that the State presented false and
incorrect information to US authorities. Two South African courts have already made this
finding. The US authorities relied on this information in good faith and actioned the
extradition on an unknowingly unlawful basis.
e) The extradition of accused 17, Nomalanga Moroadi Cholota is unlawful. As such, this
Court is precluded from trying the offences she is charged with as the unlawfulness of the
extradition renders the jurisdiction of the South African Criminal Court void.
Wherefore Accused 17 prays for an order that:
1. The extradition of Nomalanga Moroadi Cholota from the United States to the
Republic of South Africa is unlawful.
2. The South African Criminal Court does not have jurisdiction to try her on the offences
she is charged with.
[9] This then, represents the entirety of the special plea of no jurisdiction pleaded by
accused no 17, Ms. Cholota. Ordinarily , this Court should now decide each and every of the
grounds advanced as the basis for the special plea. However, it needs mentioning that, at
the hearing of the closing arguments in the trial within a trial, Ms. Makapela, appearing for
the accused, submitted that the case for the State is stillborn since it was never showed by
the State that the extradition was requested by the South African executive powers of State.
The extradition was requested by members of the National Prosecuting Authority, which
was not allowed, she submitted. Here she referred to the decision of the South African
Supreme Court of Appeal (SCA) in Schultz v Minister of Justice and Correctional Services
and Others5 ( Schultz), a decision that was handed down about two months before the
extradition order was made in the USA. In that appeal the crisp issue was whether the power
to request the extradition of a person from the USA to stand trial in the RSA vests in the
executive authority of the Minister of Justice and Constitutional Development, or whether it
vests in the National Prosecuting Authority. As ~ point of departure, the Court pointed out
that on 16 September 1999, the Government of South Africa entered into an Extradition
Treaty with the Government of the USA. The treaty was signed by the Minister of Justice
and Constitutional Development on behalf of the Government of South Africa. In terms of
4 Cholota v Director of Public Prosecutions Free State and Others [2025] ZAFSHC 21.
5 Schultz v Minister of Justice and Correctional Services and Others [2024] ZASCA 77; 2024 (2) SACR 294
(SCA).
9
Article 1 of the Treaty, the parties agreed to extradite to each other, pursuant to the
provisions of the Treaty, persons whom the authorities in the requesting State have charged
or convicted of an extraditable offence.
[10) The Court then stated that the doctrine of legality, an incident of the rule of law,
which entails that no power may be exercised beyond that which is conferred by law,
forms the basis for the consideration of the issue. Power should therefore be sourced in
law, the Court said. The Court then went on to refer to other case law and to discuss the
South African Extradition Act 67 of 1962, and the customary and international law with
reference to our own Constitution. It came to the conclusion that the National Prosecuting
Authority has the important function of determining who is to be prosecuted and what the
charges are to be. The Minister has no role or power in the exercise of this prosecutorial
function. However, if an identified accused is in a foreign State, this triggers the
engagement of executive authority, as the National Prosecuting Authority must seek
assistance from the executive to make the extradition request to the foreign state, the
Court found. The Court further stated that the Minister is the executive authority who
represented the government of the Republic in concluding the Treaty. Accordingly, he
has the power to represent the State in requests made under it, the Court said. The Court
then made the following order, and I quote:
'The order of the High Court is set aside and replaced with the following: It is declared that only
the First Respondent , (that is the Minister of Justice and Correctional Services) in his capacity as
a member of the national executive of the Republic of South Africa, has the power to make an
extradition request for the extradition of the applicant from the United States of America.'
I repeat that this order was handed down on 23 May 2024. The national Prosecuting
Authority was a party to the litigation in Schultz, and must have known of the decision of
the SCA. They had two months to engage the Minister to request the extradition of Ms.
Cholota. But they never did.
[11] Now it is patently clear that the issues around an extradition from the USA to the
RSA that served before the SCA in Schultz, are the very same issues that this Court is
presently seized with. As we have seen, the judgment of the SCA is instructive on these
issues and is to the point on the issues now before this Court. Moreover, in our legal
system, the High Court and other lower courts are bound to follow the decisions of the
SCA. This Court, therefore, has to follow the decision of the SCA in Schultz.
10
[12] Mr. De Nysschen , appearing for the prosecution, has argued that the question
whether only the Minister is empowered to request an extradition, is irrelevant in the
instant matter, because it was not included in the grounds set out in the special plea.
However, the fundamental doctrine of legality, the rule of law, the principles of customary
international law and our Constitution, lie at the heart of the question before the Court,
irrespective of whether the question was raised as a ground in the special plea or not. To
put it differently, if something was done unlawfully in the extradition process, that wrong
can never be cured by a failure to plead same in the special plea. After all, it was at least
pleaded that the extradition was unlawful.
[13] Mr. De Nysschen further argued that the Executive was in fact involved in the
request for the extradition, because emails show that representations made by the
prosecution to the USA were channeled through the South African Department of
International Relations and Co-ordination. Incidentally, this same argument was
apparently raised in Schultz, and the SCA had the following to say in relation thereto and
I quote: 'The involvement of the Department of International Relations and Co-ordination
in the process does not take the matter any further. It really talks to nothing more than
the administrative process involved.'6
[14] The facts in the present matter now become relevant, because it is necessary to
establish who actually requested the extradition of Ms Cholota from the USA to the RSA.
The only two witnesses who testified for the State in the trial within a trial, confirmed in
their testimony that they had no involvement in the extradition process and could
therefore, provide no information in relation thereto. The Court, therefore, has to rely on
the documentation presented by the prosecution in exhibit 9 to determine where the
request for extradition actually came from. The very first document filed in exhibit 9, under
tab A, is the request for extradition from the RSA to the central authority of the USA. The
request is made and signed by Navilla Somaru, the Acting Director of Public Prosecution ,
for the Free State Division of the High Court on behalf of the National Prosecuting
Authority of the Republic of South Africa on 11 January 2022. In the certificate on behalf
of the RSA, she declared that she was authorised to make requests for the extradition of
people sought for criminal prosecution.
6 Ibid para 43.
11
[15) In an accompanying affidavit, Adv. Somaru stated that the request for the arrest
and extradition of Ms Cholota is made in terms of the Extradition Treaty entered into in
1999 by the Governments of the RSA and USA.
[16] This Court does not need to go any further in trying to determine who made the
request for extradition. It was not the relevant Minister in his capacity as a member of the
executive of the Government of the RSA, but the National Prosecuting Authority. This is
underscored by the various communications in the multiple exhibits before me between
the US Department of Justice and the Prosecuting Authority. As we have seen, the
involvement of the Departmen t of International Relations and Co-ordination in these
communications , is to be regarded as of no consequence. Consequently, I have to find
that the prosecution has not proven beyond reasonable doubt. or at all, that there was a
valid and lawful request from the RSA for the extradition of Ms Cholota from the USA. It
follows that if there was not a valid and lawful request for extradition, then the extradition
itself was without any basis, and therefore unlawful.
[17] In view of these findings, it is no longer necessary for this Court to determine the
grounds for the special plea as set out in exhibit 5. I make the following order:
1 The extradition of Ms Cholota from the United States of America to the Republic
of South Africa is declared to have been done unlawfully for want of a valid and lawful
request for her extradition by the South African executive power.
2 Consequently , this Court does not have jurisdiction to try Ms Cholota on the
offences she is charge with.
3 Ms. Cholota is free to go.
~
LOUBSERJ
Appearances
For the State:
Instructed by:
For Accused 17:
Instructed by: JM De Nysschen with him T McPherson
Office of the OPP, Bloemfontein
L Makapela
Morakile Tibane Attorneys Inc, Johannesburg 12