IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the trial-within-a-trial between:
NOMALANGA MOROADI SELINA _CHOLOTA
and
THE STATE
In re:
THE STATE
and
NTHIMOTSE MOKHESI AND 17 CO-ACCUSED
Not reportable
Case no: 45/2021
APPLICANT
Case no: 45/2021
Neutral citation: Cholota v The State In re: S v Mokhesi and Others (45/2021) [2026]
ZAFSHC 116 (26 March 2026)
Coram:
Heard:
Delivered:
LoubserJ
16 March 2026
26 March 2026
Summary : Application for the reservation of questions of law made by the applicant after
judgment was delivered against her in a trial-within -a-trial - whether the questions posed
constitute questions of law
2
ORDER
1 None of the questions that are sought to be reserved, are questions of law.
2 The application for the reservation of question of law for consideration by the
Supreme Court of Appeal, is dismissed.
LoubserJ
Introduction
JUDGMENT
[1) This is an application for the reservation of questions of law for consideration by
the Supreme Court of Appeal in terms of s 319(1) of the Criminal Procedure Act no 51 of
1977 (the Act). The application concerns a judgment delivered by this court in a trial
within-a-trial in the criminal matter of the State v Nthimotse Mokhesi and 17 Others, 1 in
which matter the applicant features as accused no. 17. All the accused have pleaded not
guilty to multiple counts of fraud, corruption, money laundering and alternative counts
thereto at the commencement of the trial. The charges against the accused relate to what
has become known as the Free State Asbestos Scandal. Mr. Ace Magashule, erstwhile
Premier of the Free State Province, is one of the accused in the trial. It is common cause
that the present applicant was the personal assistant of Mr. Magashule at the time.
Background
[2] When the applicant pleaded not guilty to the charges levelled against her, a
special plea in terms of s 106(1 )(f) of the Act was handed in on her behalf. In the special
plea, she pleaded that this Court has no jurisdiction to try the offences she is charged
with, because her extradition from the United States of America to the Republic of South
Africa to stand trial, was unlawful. It was unlawful because of the improper conduct of the
1 State v Nthimotse Mokhesi and 17 Others (45/2021) [2025] ZAFSHC 164 (3 June 2025).
3
South African officials in that they presented false and incorrect information to United
States authorities during the extradition process, it was pleaded. It was contended that
the unlawfulness of the extradition rendered the jurisdiction of the South African criminal
court void.
[3] The applicant then raised four pertinent grounds in her special plea in support of
her allegations of an unlawful extradition. They are the following:
(a) The State lied to/misrepresented to US authorities that there was reasonable and
probable cause for the charges qrought against her. She was only charged because she
would not implicate Mr. Magashule during a witness interview with the State's investigators
in Washington on 21 and 22 September 2021.
(b) The State lied/misrepresented to US authorities that she was a fugitive from justice.
The basis for the request for extradition by the State was mainly the allegation that she had
refused to or was not returning back to South Africa to face trial, which allegation was false.
(c) The State lied to/ misrepresented to US authorities that the applicant was a flight risk
with connections in Kenya, which later proved to be false.
(d) The State lied to US authoritie·s that" stie was part of a syndicate with Mr. Mpambani
and facilitated kickbacks for this syndicate. On even the most cursory reading of the
charges against her, it is patently clear that she was never part of any syndicate.
[4] After this special plea was presented by the applicant, a trial-within-a-trial was held
to decide whether there was merit in the plea and whether this Court has jurisdiction to try
the charges against her. During the hearing, the State called two witnesses to testify, while
no witnesses were called to testify for the applicant. In addition, many documents were
handed in as exhibits by the parties.
[5] On 3 June 2025 this court delivered judgment in the trial-within-a-trial, and found
that the extradition was indeed unlawful, but on a different ground than any of those
that the extradition was indeed unlawful, but on a different ground than any of those
pleaded by the applicant. The court found that the extradition was unlawful in that it was
not requested by the South African powers of State but by members of the National
Prosecuting Authority. The court consequently found that it did not have jurisdiction over
the applicant. As a result, the court found that it was no longer necessary to determine
the grounds for unlawfulness of the extradition as set out in the special plea of the
applicant.
4
[6] The Director of Public Prosecutions, Bloemfontein, then took this judgment of the
court on appeal to the Constitutiondl Court. On 23 January 2026 the Constitutional Court
delivered judgment.2 The appeal was partially upheld and the order of this Court was set
aside. It was held that the extradition 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. Those grounds are the four grounds of the. special plea referred to in para 3
above.
[7] This court then proceeded to comply with the orders of the Constitutional Court by
considering the remaining grounds contained in the special plea of the applicant. It did so
by having regard to the evidence presented and the documents handed in during the trial
within-a-trial. In addition, the court had als·o taken into account the further submissions
made by counsel representing · the respective parties. On 18 February 2026 the court
delivered judgment3 and.dismissed the remaining grounds of the applicant's special plea.
It was consequently found that the court'has furisdiction to try the applicant on the charges
she is facing.
[8] It is against this judgment and findings that the applicant now seeks to have
questions of law reserved for determination by the Supreme Court of Appeal.
Section 319(1)
(9] Section 319(1) of the Act provides as follows: 'If any question of law arises on the
trial in a superior court of any person for any .offence, that court may of its own motion or
at the request either of the prosecutor or the accused reserve that question for the
at the request either of the prosecutor or the accused reserve that question for the
consideration of the Supreme Court of App.ea!, and thereupon the first-mentioned court
shall state the question reserved and shall direct that it be specially entered in the record
and that a copy thereof be trans mitted to the registrar of the Supreme Court of Appeal.'
2 Director of Public Prosecutions, Johannesburg and Another v Schultz and Others; Director of Public
Prosecutions, Bloemfontein v Cholota [2026] ZACC 3; 2026 (3) BCLR 175 (CC).
3 Cholota v The State (2026] ZAFSHC 63
[1 O] In Director of Public Prosecutions, Natal v Magidela and Another4 the criteria for
proper compliance with the requirements of s 319 were set out as follows: only a
question of law may be reserved, such questions must arise at the trial, and the trial
court must formulate the question either of its own accord or on application of the state
or the accused. It appears from this that the only discretion the judge has, is to decide
whether the questions involve points of law or not. Such a decision is not always without
difficulty, because some questions may be composite in nature and then the judge has
to decide whether the question is actually a pure question of law or fact, or whether it is
a combined question. Such delimitation is not always apparent, as is illustrated in
Magmoed v Janse van Rensburg and Others.5
The current questions of the Applicant:
5
[11] With these principles in mind, I now turn to the questions raised and to a
determination whether those questions are actually questions of law.
[12] The first question:
Whether the court erred in evaluating and determining the conduct of the State as
directed by the judgment of the C~nstitutional Court. Specifically, whether the
conduct of the State brought the administration of justice into disrepute and
whether there has been an abuse of process which amounts to an affront of the
public conscience.
[13] Having regard to what the Supreme Court of Appeal has stated in relation to a
question of this kind, the question is not a question of law but one of fact. In Director of
Public Prosecutions, Limpopo v Mo/ope and Anothef' that the court held: 'If the alleged
question of law is nothing more than a question whether the judge had correctly
considered the facts, this remains a question of fact which may not be reserved at the
request of the Estate.' In Director of Public Prosecutions, Free State v Mokatt7 the
following was said: 'The mere fact that the judicial process has become flawed by the way
following was said: 'The mere fact that the judicial process has become flawed by the way
4 Director of Public Prosecutions, Natal v Magidela and Another 2000 (1) SACR 458 (SCA).
5 Magmoed v Janse van Rensburg and Others 1990 (2) SACR 476 (C) and on appeal 1993 (1) SACR 67
(A).
6 Director of Public Prosecutions, Limpopo v Mo/ope and Another (2020] ZASCA 69; 2020 (2) SACR 343
(SCA) para 41.
7 Director of Public Prosecutions, Free State v Mokati [2022] ZASCA 31; 2022 (2) SACR 1 (SCA) para 17.
6
a trial court goes about assessing the evidence before it does not justify permitting
s 319 to be used by the prosecutirni tc., reserve a point of law for what is in truth a
misdirection of fact.'
[14] In S v Pooe8 the court rejected the question 'whether the trial court failed to
evaluate the evidence in accordance with the accepted legal principles, i.e. in totality and
taking into account the probabilities and improbabilities of the respective versions as a
question of law, holding that it is a question of fact.
[15] In the premises, the question presently under discussion is no doubt a question of
fact. This view of the court also finds support in what the Constitutional Court had stated
when it remitted this matter back to this court for adjudication of the remaining grounds of
the special plea. It stated in para 104 that the expressly pleaded grounds of the special
plea had not been adjudicated upon, 'and are dependent on factual findings which this
High Court is ill-placed to make.' This,~ourt was therefore task~d to make factual findings
and not findings in law.
[16] The second question:
. . .
' • ' l
Whether the court correctly applied the standard of proof beyond reasonable doubt
and the legal principles associated, when it found that the State had shown beyond
a reasonable doubt that there is no merit in the remaining grounds of the
applicant's special plea.
[17] When this question is considered, the court does not need to go any further than
what was stated in the matters of Molopo, of Mokati and of Pooe, supra, by the Supreme
Court of Appeal, and to which reference was already made herein. Especially in Pooe,
the question was much the same as the present question, namely whether the trial court
failed to evaluate the evldence in ~ccordance with the accepted legal principles. The
Supreme Court of Appeal found that this was a question of fact.
8 S v Pooe [2021] ZASCA 55; 2021 (2) SACR 115 (SCA) paras 15 and 55.
7
[18] Consequently , the question cannot be reserved.
[19] The third question:
Whether the court had applied the correct test and/or legal principles when
assessing the favourability / credibility of the witnesses, and the reliability and
accuracy of their evidence.
[20] Once again, the findings of the Supreme Court of App~al in the matter of Mokati,
referred to hereinbefore, are directly applicable to this question. In Mokati it was pointed
out by the court that the way in which a trial court goes about assessing the evidence
before it, does not justify permitting s 319 to be used by the prosecution to reserve a point
of law for what in truth is a misdirection of fact. The principles expressed in the matter of
Pooe, are also directly applicable to this question. There it was held that the questions
whether the trial court failed to evaluate the evidence in accordance with the accepted
legal principles, is a question of fact and not a question of law.
[21] For this reason, the third question is a question of fact and can therefore not be
reserved.
[22] The fourth question:
Whether the court properly relied on findings in the judgment of the US District
Court of Maryland and the FTI Report in determining whether there was reasonable
and probable cause to sustain the charges against the applicant when the
aforesaid judgment and report were handed down or procured after the charges
had been levelled against the applicant.
[23] With regards to this question , it needs mentioning that this court did not only rely
on the US judgment and the FTI Report (a forensic audit report) to find that there was
reasonable and probable cause to sustain the charges against the applicant. It also relied
on the testimony of Captain Calitz to the effect that the investigation in the matter
stretches back to 2020. The US judgment and the FTI Report merely corroborated the
pre-existing evidential matrix.
8
[24] Be it as it may, it is the view of this court that this question concerns factual
sufficiency, and not a legal misdirection that warrants reservation as a point of law. The
question can therefore also not be reserved.
[25] The fifth question:
Whether the court itself engaged in preliminary litigation and thus materially
misdirected itself in its finding that 'although this court has not yet heard evidence
in the main 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.'
[26] It is clear from a proper reading of this passage that the court did not make any
findings concerning the existence of a syndicate involving the applicant and others. The
court merely responded to the fourth ground of the special plea claiming that the State
had lied to US authorities that the applicant was part of a syndicate, thereby pointing out
that such information came from an independent forensic audit before the extradition
court, and not from the State per se. Accordingly, there was no misdirection by the court,
and the question pertains to a matter of fact, not of the law.
[27] This question can therefore also not be reserved.
[28] In the premises, the application for the reservation of questions of law stands to be
dismissed. The following order is made:
1 None of the questions that are sought to be reserved, are questions of law.
2 The application for the reservation of question of law for consideration by the
Supreme Court of Appeal, is dismissed.
P J LOUBSER
JUDGE OF THE HIGH COURT
Appearances
For the applicant:
Instructed by:
For the State:
Instructed by:
L Makapela
Morakile Tibane Attorneys Inc.
Johannesburg
c/o Thebe Attorneys Inc.
Bloemfontein
W Nicholson SC
Director of Public Prosecution
Bloemfontein
9