Judge rules Magashule ‘should not be allowed unfair advantage’ over corruption case

Suspended ANC secretary-general Ace Magashule, his four co-accused and the company Blackhead have been told many of their complaints about the upcoming R255m Free State asbestos audit corruption case can be assessed only during the trial.

On Monday, the high court dismissed interlocutory applications Magashule and five others raised to have the charges against them either set aside or stayed, or for them to be excused from prosecution.

Judge Soma Naidoo said a trail of payments connected to the audit and its proceeds “was the subject of investigations which led to the accused being charged” and testimony at the state capture inquiry “is also a feature of the applications” before her. 

“The accused are charged, separately in some charges and jointly in respect of other charges, with 74 counts, which include fraud, corruption, money laundering and various other statutory contraventions,” wrote Naidoo.

The applicants claimed their rights to a fair trial were being infringed. Three claimed this was due to the charges being based on evidence at the Zondo commission of inquiry into state capture.

Nthimotse Mokhesi, former head of human settlements in the Free State, argued his charges stemmed from the testimony of former Free State MEC of economic development, Mxolisi Dukwana. Mokhesi claimed the state purposely waited to charge him so that it could use his testimony at the commission against him. 

The judge reflected that the Free State director of public prosecutions (DPP) “outlined material facts leading to the criminal charges being brought” including choosing a Blackhead Consulting joint venture “without following an open and transparent procurement process” and non-compliance with treasury regulations.

Businessperson Edwin Sodi and Blackhead also complained that the criminal case arose from Dukwana’s evidence. Sodi raised his arrest one day after his third appearance at the inquiry in September 2020. “Mokhesi’s application is almost identical to that of Sodi and Blackhead,” wrote Naidoo.

In the section on Magashule, Naidoo recorded “criminal charges against him emanate from certain events/transactions that occurred during the period of his tenure” as Free State premier. 

He “avers that there is no evidence linking him to the tender process” that led to Blackhead winning the contract. On Magashule’s version he was not “even remotely” involved as premier. “He also alleges that the prosecution against him, and the timing thereof, is politically motivated,” noted Naidoo.

Naidoo found, after considering the pleas and averments, “it is clear that this court is being called upon to consider these applications in a vacuum, without the benefit of knowing the full extent of the evidence that will actually be led” and bereft of everything needed to conduct a proper assessment.

“What is clear is that, on the papers, the state has an arguable case in respect of the grounds and relief claimed by the accused,” said Naidoo.

These applicants, wrote Naidoo, “should not be allowed to gain an unfair advantage” when the fair trial notion applies to both the accused and the state. She found “it is not appropriate” for the Free State high court to “entertain” the applications and “they must each fail”.

batese@businesslive.co.za