US extradition of Magashule’s ex-PA Moroadi Cholota declared unlawful

The Free State High Court in Bloemfontein has ruled that it does not have jurisdiction to try Moroadi Cholota, the former personal assistant to ex-Free State premier, Ace Magashule.

Judge Philip Loubser, who is presiding over the R255 million asbestos corruption trial, handed down his judgment on Tuesday.

This followed two weeks of testimony from state witnesses Benjamin Calitz and Nicholas “Nico” Jacobus Gerber, both officers with the Directorate for Priority Crime Investigation (DPCI), commonly known as the Hawks, in a trial-within-a-trial relating to Cholota’s extradition from the United States (US).

The two had travelled to the US in 2021 to interview Cholota, who was initially a state witness, regarding emails that allegedly implicated her in the asbestos tender saga.

While Cholota was initially charged with corruption, fraud and money laundering, the last two charges were withdrawn by the state.

Free States asbestos trial: Moroadi Cholota’s special plea judgment

During Tuesday’s proceedings, Lousber highlighted that Cholota had already pleaded to the fraud charges before they were withdrawn.

“Although it remains a mystery to this court why the counts in question were put to the accused number 17 at all in view of the terms of the extradition order, it will not be necessary for the prosecution to stop the prosecution in relation to those charges,” he said.

The judge said Cholota will not be entitled to demand that she be acquitted or convicted on the withdrawn charges because she had pleaded to them.

He noted the accused’s argument that her extradition was unlawful because the prosecutors and investigators submitted false claims to the US in their application to haul her back to South Africa.

Cholota had claimed that she was charged for refusing to implicate Magashule.

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Lousber found that the state did not deny that Cholota was told by Calitz that her lack of cooperation could lead to her being charged.

“What appears pertainently clear is that it is undeniable that the state presented false and incorrect information to United States authorities.

“Two South African courts have already made this finding and the US authorities relied on this information in good faith and actioned the extradition on an unknowingly unlawful basis.”

He, therefore, ruled that the court cannot try Cholota and granted the special plea.

“The unlawfulness of the extradition renders the jurisdiction of the South African criminal court void.”

Watch the proceedings below:

Bursary withdrawn

The court previously heard that Cholota had been studying at Bay Atlantic University in Washington D.C on a bursary awarded by the Free State government in 2019.

Calitz testified that Cholota was warned in August 2022 that her bursary could be revoked due to her lack of cooperation.

READ MORE: ‘What if she went on holiday’: Hawks investigator grilled on ‘surprise’ US trip for Magashule’s ex-PA

She reportedly failed twice to submit reasons why it should not be terminated.

Her bursary was officially withdrawn in October 2022.

She was arrested in Baltimore in April 2024 and extradited to South Africa a few months later in August.

Moroadi Cholota challenges US extradition

Cholota had initially contested a 7 June 2024 US court ruling allowing her extradition, but her appeal was unsuccessful.

Her application to South Africa’s Constitutional Court (ConCourt) on 26 July 2024 was dismissed for lacking urgency and not meeting the requirements for direct access.

Subsequently, Cholota’s attempt to have her charges dropped was rejected by the Free State High Court on 26 August.

Earlier this year, the same court dismissed her bid to have her arrest and extradition declared unlawful.

Cholota previously signalled her intention to appeal the 23 January ruling in the Supreme Court of Appeal (SCA).

She was out on R2 500 bail after spending nearly five months in custody between the US and South Africa.

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