The Constitutional Court on Friday ruled that the extradition of former Free State premier Ace Magashule’s erstwhile personal assistant Moroadi Cholota was unlawful but that this did not mean she could not face criminal charges.

In a unanimous judgment written by Justice Leona Theron, the apex court found that Cholota argued her 2024 extradition from the US, where she was studying, was unlawful as it was issued by the National Prosecuting Authority (NPA) only during her lawyer’s closing address.

The Concourt found that advancing a new ground for a special plea during her closing address deprived the State an opportunity to respond in violation of the Criminal Procedure Act.

In June last year, Free State High Court Judge Phillip Loubser declared that Cholota’s extradition to South Africa had been done unlawfully for want of a valid and lawful request for her extradition by the South African executive power (Minister of Justice).

“Consequently, this court does not have jurisdiction to try Cholota on the offences she is charged with. Cholota is free to go,” the High Court ruled.

The NPA then appealed directly to the Constitutional Court, which granted the direct appeal.

In its judgment, the country’s highest court partially upheld the appeal and set aside Judge Loubser’s order.

“It is declared the NPA has the power to prepare, draft, and submit to the national executive (Minister of Justice) extradition requests for the national executive to make such requests to a foreign state. Only the national executive has the power to make extradition requests to foreign states,” the apex court ruled.

In addition, it also declared Cholota’s extradition unlawful on the basis that the extradition request was authorised by the NPA or an official within the NPA rather than the national executive.

“However, the fact that the extradition was unlawful as aforesaid does not of itself deprive the High Court of South Africa, Free State Division, Bloemfontein, of criminal jurisdiction over the respondent (Cholota),” reads the judgment.

The Concourt remitted the matter to the High Court to determine the remaining grounds of Cholota’s special plea.

In her special plea, Cholota had argued that the State misrepresented to US authorities that there was reasonable and probable cause for the charges brought against her and that she was a fugitive from justice.

She also indicated that the State misrepresented to US authorities that she was a flight risk with connections in Kenya, and that she was part of a syndicate with late businessman Ignatius “Igo” Mpambani and facilitated kickbacks for this syndicate.

After the judgment was handed down, Cholota said she was not willing to stop the fight for her freedom and her rights, which she is not willing to stop at any point.

“I would also like to ask for support for my BackaBuddy campaign to cover my legal fees because as you can see how thing is prolonging, which now sits at more than R5 million,” she said.

Cholota also expressed her gratitude to everyone, especially the government employees, who are supporting her.

She complained that the police officers and prosecutors who arrested her conspired to subject her to cruel treatment and mental torture, and threatened her liberty and freedom.

“The nation also watched as I was taken from my university, unlawfully brought to this country chained and accompanied by countless men with guns, and this is after I had to spend time, still, in jail. As you all watched, I was brought to court shackled, which is something that none of my former (co-)accused went through,” Cholota added.

She said she was paraded before TV cameras and humiliated before the nation, and that the State fought for her to be jailed pending the trial when they did not do this to what she referred to as her “former (co-)accused”.

NPA spokesperson Mthunzi Mhaga said the Supreme Court of Appeal’s earlier judgment that the national executive has the power to make extradition requests is affirmed.

“However, in so far as the judge refusing to hear or have jurisdiction to hear the matter, we are obviously vindicated in the sense that the matter is now remitted to the High Court so that the other grounds of special plea can be adjudicated,” he said.

The trial-within-a-trial in the multimillion-rand asbestos case at the High Court dealing with Cholota’s special plea will resume on Monday.

loyiso.sidimba@inl.co.za

Source link