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[2026] ZAFSHC 63
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Cholota v The State (45/2021) [2026] ZAFSHC 63 (18 February 2026)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Not reportable
Case no:
45/2021
In the trial-within-the
trial between:
NOMALANGA MOROADI
SELINA CHOLOTA
ACCUSED
17
and
THE STATE
In re:
Case
no: 45/2021
THE STATE
and
NTHIMOTSE MOKHESI AND
17 CO-ACCUSED
Neutral
citation:
Cholota
v
The State
(45/2021)
[2025] ZAFSHC 63
(18 February 2026)
Coram:
Loubser J
Heard:
3 February 2026
Delivered:
18 February 2026
Summary:
Determination of remaining grounds of the special
plea presented by accused 17, as directed by the Constitutional Court
under case
number CCT190/25 on 23 January 2026.
ORDER
1
The remaining grounds of Ms. Cholota’s
special plea are dismissed.
2
This court has jurisdiction to try Ms.
Cholota on the charges she is facing.
JUDGMENT
Loubser J
[1]
This is the court’s judgment
concerning the remaining grounds of the special plea of no
jurisdiction raised by Ms. Cholota
in the criminal trial of 18
accused in relation to what has become known as the Free State
Asbestos Scandal. All the accused have
pleaded not guilty to multiple
counts of fraud, corruption, money laundering and alternative counts
thereto. Ms. Cholota features
as accused no. 17 in the trial.
[2]
Previously, on 3 June 2025, this court
delivered judgment after a trial-within-a-trial was held to determine
the merits of Ms. Cholota’s
special plea. The court found that
the extradition of Ms. Cholota from the United States to South Africa
was unlawful in that the
extradition was not requested by the South
African powers of State but by members of the National Prosecuting
Authority. As a result,
the court held that it did not have
jurisdiction over Ms. Cholota. Accordingly, the court found that it
was no longer necessary
to determine the remaining grounds of the
special plea as initially pleaded.
[3]
Having been dissatisfied by this outcome in
the trial-within-a-trial, the Director of Public Prosecutions,
Bloemfontein, took the
matter on appeal to the Constitutional Court.
On 23 January 2026 the Constitutional Court delivered judgment, in
which the appeal
was partially upheld and the order of this court was
set aside. It held that the extradition of Ms. Cholota was indeed
unlawful
since only the National Executive has the power to make
extradition requests to foreign states, and not the officials of the
National
Prosecuting Authority. However, it was further held that the
fact that the extradition was unlawful as aforesaid, does not of
itself
deprive this court of criminal jurisdiction over Ms. Cholota.
The Constitutional Court then made an order remitting the matter to
this court to determine the remaining grounds of Ms. Cholota’s
special plea.
1.
The relevant remaining grounds of
the special plea are contained in a written special plea handed in by
Ms. Cholota’s counsel
as exhibit 5 at the time when she pleaded
not guilty to the charges levelled against her. I regard it apposite
here to quote the
full text of the special plea verbatim. It reads as
follows:
“
1.
Accused 17, Ms. Nomalanga Moroadi Selina
Cholota, pleads not guilty to all the charges levelled against her by
the State and puts
the State to the proof thereof.
2.
Accused 17 further relies on
Section
106(1)(f)
of the
Criminal Procedure Act 51 of 1977
and pleads that
the Court has no jurisdiction to try the offences she is charged
with.
3.
The State is put to the proof that
this Court has jurisdiction to try the offenses Accused 17 is charged
with.
4.
Accused 17 delivers this plea
explanation in terms of the provisions of
section 115
of the
Criminal
Procedure Act and
in line with the provisions of this section, raises
the following issues to be tried by this Court:
4.1
The State lied to/misrepresented
to US authorities that there was reasonable and probable cause for
the charges brought against
Ms. Cholota/Accused 17
.
4.1.1
She was charged after she would not
implicate Mr. Magashule (Accused 13) during a witness interview with
the State's investigators
on 21 and 22 September 2021.
4.1.2
The State itself informed the
Constitutional Court, in a sworn affidavit deposed to by one of the
investigators (Capt. 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" (Paragraph 133, Pg. 33 of
the Third
Respondent's Affidavit in N.M.S. Cholota v The Minister of Justice
and Constitutional Development & 3 Others - Case
Number CC
172/24.
4.1.3
The charges against the Accused 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 (State's Answering Affidavit,
Opposed Bail Proceedings August
2024)
4.1.4
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.
4.2
The State lied/misrepresented to US
authorities that Accused 17 was a fugitive from justice
.
4.2.1
The basis for the request for extradition made to the United States
by the State was mainly the fact that
the Accused refused to or was
not returning back to the country to face trial.
4.2.2
This above information was proven to be false during the opposed bail
proceedings on 14 August 2024.
4.2.3
The Magistrate found that that there was no evidence to prove that
the Accused had ever been contacted by
the State and informed of a
hearing date/requested to return to the country to attend a court
hearing date:
"She
was a resident and a student in the United States at all times. There
is no evidence that it was difficult to get ahold
of her when she was
needed. It appears that there was regular communication between her
and the State and her previous legal representatives
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
from 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." (Pg. 11, Lines 7-20,
Judgment of Magistrate De Lange in
Nomalanga
Cholota v The State Case No: 20/497/24).
4.2.4
Accused 17 had previously demonstrated that she obeyed court/legal
summons when she had travelled back from
the United States to South
Africa to give testimony at the Zondo Commission in December 2019.
4.2.5
The State lied to/presented 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.
4.3
The State lied to/ misrepresented to US authorities that Accused 17/
Ms. Cholota was a flight
risk with connections in Kenya.
4.3.1
The State Prosecutor, Adv. De Nysschen, deposed to a sworn affidavit
under oath, which was submitted to
US authorities as a supplement to
the Request for Extradition. Therein, he informed the US authorities
that Accused 17 was a flight
risk, and that she had connection in
Kenya:
"She
will, in al/ probability, apply for bail which may be opposed by the
prosecution, due to the possibility of her being
a flight risk, her
connection in Kenya and the outcome of the extradition" (Pg. 2,
Affidavit of Johannes Mattheus De Nysschen,
dated 28 August 2023
and marked 06 September 2023 Request for
Extradition.
4.3.2
Ordinarily in extradition in the US, fugitives/accused persons are
released on bail pending the extradition
hearing.
4.3.3
Ms. Cholota was forced to abandon her pursuit of bail, as US
authorities presented to the US District Court
that Ms. Cholota was a
flight risk with connection in Kenya.
4.3.4
The Magistrate in the bail proceedings noted this in her judgment:
"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." (Line 4, Pg. 14, Judgment of
Magistrate De Lange in Nomalanga Cholota v The State Case
No:
20/497/24).
4.3.5
As a result, Ms. Cholota abandoned bail application the US as she
could not defend herself against the false
claim that she had
connections in Kenya.
4.3.6
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. (Various
sworn affidavits filed before the Free State High Court in NMS
Cholota v Director of Public
Prosecutions &
3 Others)
4.3.7
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 mistook Nigeria and Kenya.
4.4
The State lied to US authorities that
Accused 17 was part of a syndicate with Mr. Mpambani and facilitated
kickbacks for this syndicate.
4.4.1
On even the most cursory reading of the charges against Accused 17,
it is patently clear that Accused 17
was never part of any syndicate.
4.4.2
No such allegations appear in the amended charge sheet filed by the
State with the Free State High Court
nor evidence levelled against
the 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.
5.
The judgment by Hefer AJ in the Free State Hight 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 Aslan, 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 blame before 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 incorrect
information to authorities
of another country concerning a South
African citizen presents a serious public interest concerns and has
serious implications
on the interests of justice. I also agree with
his submission that the above conduct by the state grossly infringes
on international
law and constitutional law."
6.
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.
7.
The extradition of Accused 17,
Nomalanga Moroadi Cholota is unlawful. As such, this Court is
precluded from trying the offenses
she is charged with as the
unlawfulness of the extradition renders the jurisdiction of the South
African Criminal Court void.
Wherefore Accused 27
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 offenses she is charged
with.
Signed on this 16 day of
April 2025 (by Ms. Cholota)
[4]
This is then the special plea that this
court now has to decide. Before proceeding any further, however, I
also regard it apposite
to refer to the provisions of
s106(1)(f)
of
the
Criminal Procedure Act since
the special plea is raised in terms
of that section. The section provides that when an accused pleads to
a charge, he may plead
that the court has no jurisdiction to try the
offence.
S106(3)
provides that when such a plea is pleaded, the
accused shall give reasonable notice to the prosecution of his
intention to do so,
and in such notice state the ground on which he
bases his plea. The requirement of the notice may be waived by the
prosecution,
and the court may dispense with such notice on good
cause shown.
[5]
The issue of such a notice does not arise
in the present matter since Ms. Cholota has raised her plea setting
out all the
grounds on which she based her plea, and the State was
allowed sufficient time to prepare for the trial-within-a-trial in
respect
thereof. However, the statutory requirement that the grounds
on which the accused bases his plea must be stated in the notice, is
a clear indication that the accused would be confined to those
grounds at the hearing of the special plea. No additional grounds
outside the grounds stated in the notice, or in this case the written
plea handed in on behalf of
Ms. Cholota,
should be considered by the court. Such an approach would also be in
accordance with the principles of pleadings in
general.
[6]
Ever
since 1945 it has been the position in our law that when an accused
challenges the jurisdiction of a court, the prosecution
bears the
onus of proving beyond reasonable doubt that the court has the
necessary jurisdiction.
[1]
This
is why the prosecution opened the proceedings in the
trial-within-a-trial by presenting the testimony of two witnesses who
had interviewed Ms. Cholota in the United States at the stage when
she was still regarded as a potential witness in the pending
criminal
trial. They were Capt. Calitz, the investigating officer, and
Brigadier Gerber (now a general), both of the police unit
known as
the Hawks. The State also handed in a large number of documents, to
which reference will be made later herein. Ms. Cholota
did not
testify herself in the trial-within-a-trial, and her case was closed
after Capt. Calitz and Brigadier Gerber had testified.
[8]
It needs to be stated at the outset
that both Capt. Calitz and Brigadier Gerber made a favorable
impression on the court as witnesses
who testified as to what
transpired at the interview they had with Ms. Cholota on 22 and 23
September 2021 in Washington. The court
watched both of them closely
as they gave their respective testimony and when they were
cross-examined at length. Their demeaner
in the witness-stand and the
way in which they answered questions, never caused the court to
believe that they were on a mission
to mislead the court or to tell
lies. This impression of the court became confirmed when Mr. Hodes
for Mr. Ace Magashule, presented
the court with a transcript of the
first day’s interview that took place with Ms. Cholota. This
happened towards the end
of the testimony of Capt. Calitz who
testified first. The recording was made by Ms. Cholota herself, using
some unknown recording
device. In the end, the transcript confirmed
the version of the two State witnesses in all material respects, and
the State consequently
had no objection to the handing in of the
transcript as exhibit 11. The court therefore does not have to look
any further to establish
what happened at the interview.
[9]
I now turn to the four grounds for
the special plea of no jurisdiction as raised by Ms. Cholota in
exhibit 5, and each of them will
be discussed separately and in
sequence. The first ground is that the State lied to/misrepresented
to US authorities that there
was reasonable and probable cause for
the charges brought against Ms. Cholota. It is further stated that
she was charged only after
she would not implicate Mr. Magashule
during the interview referred to hereinbefore.
[10]
In this respect Capt. Calitz denied
in this court in evidence in chief that she was only changed because
she would not implicate
Mr. Magashule. When she was interviewed, she
was still regarded as a State witness, but they, the interviewers,
wanted to clarify
certain aspects with her. In cross-examination
Capt. Calitz conceded that one of the aspects they wanted to clarify,
was the position
of Mr. Magashule. He then went so far as to concede
that they wanted Ms. Cholota to implicate Mr. Magashule or herself.
Brigadier
Gerber testified that the purpose of the interview was to
obtain a witness statement from Ms. Cholota. What they wanted to
know,
was the identity of the person who gave her certain
instructions. When it became clear on the second day that she was not
going
to give any witness statement, they decided to view her as a
suspect, and a warning statement was then taken from her, he
testified.
He denied that they specially wanted Ms. Cholota to
implicate Mr. Magashule.
[11]
Now, having regard to the
testimonies of these two witnesses. I am of the view that this court
is justified to find on a balance
of probabilities that Ms. Cholota
became a suspect during the course of the interview because she was
not willing to implicate
Mr. Magashule. Such a finding would make
sense because the bone of contention is apparently certain
instructions Ms. Cholota received
under the letterhead “Office
of the Premier” which would point to corrupt activities,
inter
alia
. At the time Ms. Cholota was the
personal assistant of the Premier of the Free State Province, Mr.
Magashule. The information she
refused to give to the two State
witnesses, is that those instructions came from Mr. Magashule
himself. Her version was that those
instructions could have come from
any of the many people who worked in the office of the premier.
[12]
Concerning the questioning of a
witness by the police in order to establish whether that witness
could assist the State in strengthening
the case against co-accused,
I hold the view that such questioning is not an uncommon or irregular
practice employed by police
investigators. If such a witness does not
want to assist the police in this respect, then the police would be
entitled to regard
the witness as a suspect himself. But be it as it
may, this court finds that Ms. Cholota was indeed regarded as a
suspect in the
pending criminal trial from the moment it transpired
that she was not prepared to implicate Mr. Magashule.
[13]
However, this is not the end of the
enquiry, because in the first ground it was pleaded that Ms. Cholota
was charged only after
she would not implicate Mr. Magashule. It was
pleaded that the State had lied or misrepresented to US authorities
that there was
reasonable and probable cause for the charges brought
against her. The next question is therefore whether there was in any
event
such reasonable and probable cause when the decision was taken
to regard her as a suspect and no longer as a witness when she
refused
to implicate Mr. Magashule.
[14]
Capt. Calitz testified that already
in 2020 there was direct evidence found of Ms. Cholota’s
involvement in the asbestos matter.
They used her own laptop at the
premier’s office to obtain this evidence, and they did some
downloads from other devices
as well. Brigadier Gerber also testified
that Ms. Cholota became implicated before the interview took place,
and there was evidence
of criminality. She became further implicated
via the evidence that she gave before the Zondo-commission, he said.
[15]
In addition, the judgment of the
United States District Court for the District of Maryland in the
extradition application of Ms.
Cholota, dated 7 June 2024, was placed
before this court by the State. It is the judgment of United States
Magistrate Judge Erin
Aslan, and it appears in exhibit 9 under tab E.
In the judgment, the learned Magistrate Judge remarked that in
issuing the warrant
for the arrest of Ms. Cholota, Judge Austin
determined that probable cause exist to support the charged offences.
“
The undersigned concurs. As noted,
the required evidentiary threshold is a "reasonable ground to
believe" that Ms. Cholota
committed the charged offenses. The
submission offered by the United States on behalf of South Africa
outlines a conspiracy to
engage in government contracting fraud and
misappropriate government funds for the personal benefit of
government officials and
others. Ms. Cholota is alleged to have
knowingly engaged in this scheme by using her government position to
facilitate corrupt
financial transactions. South Africa's extradition
request is accompanied by indictments, sworn statements and
affidavits, a forensic
audit, emails, and many other documents, all
of which amply support a finding of probable cause to believe both
that Ms. Cholota
is the individual named in the pending South African
indictment and that she committed the charged offenses. The evidence
before
this Court is sufficient to justify Ms. Cholota's commitment
for trial had the offenses with which she is charged been committed
in the United.” The
Magistrate Judge
the found Ms. Cholota extraditable and referred the matter to the US
Secretary of State for a decision on the extradition.
[16]
On 31 July 2024 the Deputy Secretary
of State issued authorization for Ms. Cholota
to
be extradited to South Africa to stand trial for the offenses of
fraud as charged in Counts 3, 4, 5, and 6 only, and corruption,
as
well as the specified alternatives to the corruption charges.
Extradition was not granted for the offenses of fraud as charged
in
Counts 1, 2, 7, and 8, nor, for the specified alternatives to any the
charges, nor for the offenses of money laundering.
[17]
It is clear from the US judgment and
the extradition authorization that the request for extradition came
under close scrutiny in
the US. The request was not simply there for
the taking. This is underscored by the fact that the US authorities
were not initially
satisfied that probable cause had been shown, and
the leader of the prosecution here in South Africa had to address a
number of
queries that were received from the US over time before the
matter ended up in the Maryland District Court. What is significant,
is that the court had found that probable cause had been shown. The
forensic audit to which the court referred, is one by FIT Consulting,
filed under Tab T of Exhibit 9. Ms. Cholota is implicated in this
document.
[18]
In his testimony before this court,
Capt. Calitz strongly denied that the State had lied to or
misrepresented anything to the US
court. All the information and the
statements that the State had, were presented to the US court, he
said.
[19]
Now upon a proper reading of the
ground now under discussion, it is clear that Ms. Cholota pleads that
she was charged only because
she would not implicate Mr. Magashule,
while there was never any reasonable or probable cause for the
charges against her. However,
the evidence of Capt. Calitz and
Brigadier Gerber, and the findings of the Maryland District Court,
dictate otherwise. I find that
the State has proven beyond a
reasonable doubt that there was reasonable and probable cause for the
charges against Ms. Cholota,
and that she was not only charged
because she failed to implicate Mr. Magashule.
[20]
In the second ground of the special
it is alleged that the State had lied or misrepresented to US
authorities that Ms. Cholota was
a fugitive from justice. It is
further alleged that the basis for the request for extradition made
to the United States was mainly
the fact that the accused refused to
or was not returning back to face trial. Curiously enough, no mention
whatsoever is made in
the Maryland District Court’s judgment
that Ms. Cholota was a fugitive from justice or that she had refused
to or was not
returning back to her home country to face trial. On
the face of it, the allegations made by Ms. Cholota in this respect
are not
borne out by the judgment of the US Court at all.
[21]
Nonetheless, I take note of what
Magistrate De Lange has found, as quoted by Ms. Cholota in this
ground of the special plea. The
findings of the Magistrate, however,
do not take the question any further, namely the question whether the
State had lied to US
authorities that Ms. Cholota was a fugitive from
justice. Capt. Calitz did deal with this question when he testified
in this court,
though. He testified that the issue of her being a
flight risk, never formed part of the extradition application.
Although it was
mentioned to US authorities that she had travelled by
air to Kenya on occasion and that she therefore had connections in
Kenya,
it played no part in the extradition itself, he testified. In
the absence of any conflicting evidence coming from Ms. Cholota, this
evidence of Capt. Calitz has to be accepted by the court.
[22]
In any event, there are indeed
indications that Ms. Cholota was not keen to return to South Africa
to face trial. Capt. Calitz testified
that before her extradition,
Mr. Hodes had informed a pre-trial court that Ms. Cholota would
return to South Africa on her own
accord. There were also later
communications confirming that she would return to face the charges
against her. When she did not
return, it resulted in the extradition
process, he testified. In an effort to stop the extradition process,
she even brought an
application in the Constitutional Court for the
prosecution against her to be stopped, which application was
dismissed with costs.
[23]
In view of this evidence before me,
I find that the State has shown beyond a reasonable doubt that it had
not lied to US authorities
that Ms. Cholota was a fugitive from
justice. The request for extradition was not mainly based on the fact
that she was not returning
to South Africa. It only resulted in the
extradition process, but it never formed part of the extradition
process itself. This
ground in the special plea can therefore also
not be upheld.
[24]
The third ground on which Ms.
Cholota relies in her special plea, is closely connected to the
second ground. It is alleged in this
ground that the State had lied
to or misrepresented to US authorities that Ms. Cholota was a flight
risk, and that she had connections
in Kenya.
[25]
Capt. Calitz testified that the
Kenya issue did not play any role in the decision to extradite
itself. The lead prosecutor, however,
did mention to US authorities
that Ms. Cholota had connections in Kenya, and that there is
consequently a possibility of her being
a flight risk. Capt. Calitz
explained that during investigations, it transpired that she had
travelled to Kenya a few times. It
later became apparent that the
father of Ms. Cholota’s child, and the child himself, lived in
Nigeria. Her presence in Kenya
was only a stopover to catch a
connecting flight to Nigeria when she was
en
route
to visit her son, he testified.
[26]
The irony of all of this is that it
was at least the truth that Ms Cholota had connections in Africa, but
then in Nigeria and not
in Kenya. Consequently, nothing turns on this
point. What is relevant, is the testimony of Capt. Calitz that the
flight risk issue
played no part in the US Court’s decision to
extradite. This ground can therefore also not be upheld in the
premises.
[27]
The last ground of the special plea
is that the State lied to US authorities that Ms Cholota was part of
a syndicate with Mr. Mpambani
(representing accused no 5, Diamond
Hill Trading 71 (Pty) Ltd) and facilitated kickbacks for this
syndicate. It is further alleged
that the charges against Ms Cholota
show that she was never part of a syndicate, and that such
information was only given to the
US authorities to bolster the
unlawful quest for her extradition. This is followed by a quotation
from a judgment delivered in
the Free State High Court by Hefer, AJ
in which he found that the State had provided incorrect information
to the US Court during
the extradition proceedings.
[28]
The judgment in question appears
under Tab N of Exhibit 9. It was a judgment in an application by Ms
Cholota that the charges of
fraud and corruption be declared
unconstitutional and invalid, and that the conduct of the State in
the extradition renders the
extradition unlawful. This judgment was
delivered on 23 January 2025. In her application, Ms Cholota relied,
inter alia
,
on some of the same grounds appearing in her present special plea.
For instance, she alleged in the application that the State
had
misrepresented to the United States that she was part of an elicit
criminal scheme in which she facilitated kickbacks and that
she had
refused to voluntarily return to South Africa to stand trial. She
also mentioned the issue that the State fabricated the
assertion that
she was a flight risk owing to her connections in Kenya.
[29]
Despite his earlier findings, Hefer
AJ eventually came to the conclusion that Ms Cholota may,
inter
alia
plead that this Court has no
jurisdiction to try the offenses. That is to be dealt with the Judge
presiding at the criminal trial,
he found. In this respect he
referred to authorities discouraging preliminary litigation, prior to
the criminal trials. Hefer
AJ then went on to dismiss the
application with costs. The findings of the learned Judge to which Ms
Cholota refers in this ground
of the special plea, are therefore not
conclusive, and remain open for adjudication by this Court.
[30]
As far as the references to a
syndicate with Mr Mpambani of the Diamond Hill Company in this ground
are concerned, one does not
have to go further than the forensic
audit provided by the FTI, which is filed under Tab T of Exhibit 9.
As mentioned by the Maryland
District Court, this forensic audit was
submitted to it in the extradition application. The following is
relevant in the report
to the allegation that the State had lied to
US authorities that Ms Cholota was part of a syndicate with Mr
Mpambani: “Blackhead
Consulting and Diamond Hill
submitted their proposal in May 2014 to the FSDHS proposing to
conduct the same Asbestos Eradication
Project performed in Gauteng,
for the Free State. The JV agreement was signed in August 2014,
almost three months after their proposal
was submitted to the FSDHS
and both parties failed to disclose the forming of a JV to the FSDHS.
We were unable to obtain any evidence
that the JV, neither Blackhead
Consulting nor Diamond Hill executed any of the work envisioned in
the proposal submitted to the
FSDHS apart from facilitating the
informed process, managing the relationships with the FSDHS and other
public officials. It is
evident that the Blackhead Consulting/Diamond
Hill JV was formed to disguise the true substance of the transactions
entered into
with little or no visibility of the disguised
relationships and/or interests by the FSDHS.
Payments for the Free
State Asbestos Eradication Project to the Blackhead
Consulting/Diamond Hill JV were made during the period
2 December
2014 to 10 November 2015. It was during this period that Mpambani and
Sodi managed their relationship with Magashule
and Cholota.
Mpambani received several requests from Cholota for financial
assistance for
inter alia
students, government officials and
ANC delegation visits, which were founded by Blackhead Consulting,
Diamond Hill and/or 605 Consulting.”
[31]
Although this Court has not heard
evidence in the main criminal trial yet, it is clear from the quoted
passages in the forensic
audit that Ms Cholota had requested payments
from Mr. Mpambani after his company had received payments for the
asbestos project,
while no work in the project had been done. This
conduct can certainly be seen as conduct evidencing a syndicate
between Ms Cholota
and Mr. Mpambani to facilitate kickbacks for the
syndicate. But this is not the point presently. The point is that
this information
was provided in the forensic audit of an independent
forensic entity, and not the State per se. The conclusion is
therefore that
it cannot be said that the State had lied to US
authorities in this respect. This ground in the special plea also has
to fail.
[32]
In the premises, I find that the
State has shown beyond a reasonable doubt that there is no merit in
the remaining grounds of Ms.
Cholota’s
special
plea
.
The
following order is consequently made:
1
The remaining grounds of Ms. Cholota’s
special plea are dismissed.
2
This court has jurisdiction to try Ms. Cholota on the charges she is
facing.
P J LOUBSER J
JUDGE OF THE HIGH
COURT
Appearances
For
the State:
T
L McPherson
Instructed
by:
Director
of Public Prosecution
Bloemfontein
For
Ms. Cholota
:
L
Makapela
Instructed
by:
Morakile
Tibane Attorneys Inc.
Johannesburg
c/o
Thebe Attorneys Inc.
Bloemfontein
[1]
R
v Radebe and others
1945 AD 590