Cholota was one of 18 co-accused in the R255 million asbestos corruption case involving former Free State premier Ace Magashule.
The Constitutional Court (ConCourt) has upheld a ruling of the Free State High Court in Bloemfontein that Moroadi Cholota’s extradition from the United States was unlawful.
However, it also found that the Free State High Court’s sole basis for declining to exercise criminal jurisdiction, because Cholota’s extradition was requested by the incorrect state functionary, does not mean that any irregularity in extradition proceedings should result in a court declining to exercise its criminal jurisdiction.
“Such reasoning is not supported by the facts and would not strike an appropriate balance between the concern for lawful process and the imperative to combat impunity,” said Deputy Chief Justice Dunstan Mlambo on Friday.
Cholota was one of 18 co-accused in the R255 million asbestos corruption case involving former Free State premier Ace Magashule.
Cholota challenges extradition
The National Prosecuting Authority (NPA) approached the ConCourt following the High Court ruling in June 2025.
It had asked the ConCourt to determine which state functionary has the power to make extradition requests to foreign states: the national executive or the National Prosecuting Authority?
It was also asked to rule on whether the High Court was correct in declining to try Cholota on the grounds that the extradition was unlawful.
NPA vs national executive
In the first matter, the ConCourt upheld the ruling that the extradition was unlawful. This is because the NPA had implemented it rather than the national executive.
“This court affirms that the legal process of outgoing extradition requests, by its nature, functions at the intersection between domestic and international law.
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“Domestically, the prosecuting authority usually initiates a prosecution and prepares the requisite documents for an extradition request. Internationally, the requesting state generally transmits the request to another state. Necessarily, the international stage of this process involves acts of external sovereignty.
“In assessing the NPA’s powers in this process, this court holds that the final authority to make extradition requests to foreign states is not an implied power of prosecutorial authority. This is because the international stage of outgoing extradition requests entails sensitive diplomatic and foreign relations considerations, which fall squarely within the domain of the national executive.
“In other words, the international stage of outgoing extradition requests cannot be entirely subsumed under prosecutorial proceedings, and the separation of powers principle forbids the NPA from controlling the entire process.
“The NPA possesses broad powers over prosecutorial proceedings, which cover much of the domestic stage of outgoing extraditions. As a domestic state organ, however, it cannot represent South Africa at a state-to-state level.”
State’s rights infringed
However, the ConCourt took issue with the fact that Cholota’s legal representation raised the unlawfulness of her extradition at a late stage.
It said this infringed on the state’s right to respond.
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“This court also finds that direct leave to appeal should be granted. It would be in the interest of justice to finalise this matter on an aided basis.
“On the merits of the Cholota matter, the Constitutional Court holds that the state’s right to be heard was infringed during the trial within a trial in that counsel for Ms Cholota raised the argument that Ms Cholota’s extradition was unlawful because it was issued by the NPA for the first time during a closing address.
“Advancing a new grant for a special plea during the closing address deprived the state of the opportunity to respond in violation of section 106, subsection 3 of the Criminal Procedure Act. The Bloemfontein High Court erred in dismissing the state’s objection.”
The matter will now return to the High Court.
