The tension between opposing lawyers appearing in the Bloemfontein High Court on Tuesday to argue the matter of whether corruption charges against suspended ANC Secretary-General Ace Magashule should be dropped was unusually palpable, even by the normal standards of adversarial court proceedings.

Magashule’s lawyer, Laurence Hodes SC, accused State prosecutor Nazeer Cassim of betraying his “inexperience” in criminal law. Firing back that he had a distinguished 40-year legal career, Cassim, in turn, charged Hodes with authoring heads of arguments that contained at least nine pieces of “misrepresentation and dishonesty”.

Hodes also accused other senior State prosecutors of driving the case against Magashule for political reasons, which Cassim termed a “scandalous” attack on the “dignitas” of lawyers devoting their careers to public service.

Magashule is one of four accused in the corruption case relating to the 2014 Free State asbestos scandal who are applying to have charges against them dropped before the trial begins.

At the heart of the matter is a R255-million contract awarded by the Free State government under the premiership of Magashule in 2014 to audit 300,000 houses for traces of toxic asbestos. The work was repeatedly sub-contracted by those involved in the fraud, the State alleges, with the eventual “real” contract worth R21-million awarded without the work even being completed.

As he did the previous day, Cassim stressed to the court the real-life implications of this quantity of fraud for Free State residents currently living without access to decent roads or basic services.

“This is public money,” Cassim said, scoffing at the notion that charges against Magashule should be dropped.

“A responsible person in power has to answer this.”

Senior Counsel Nazeer Cassim inside Court G representing the State for the second day of a civil litigation application brought by Ace Magashule on 22 February 2022. (Photo: Lihlumelo Toyana)

Laurence Hodes SC, legal counsel of suspended ANC Secretary-General Ace Magashule, inside Court G at the Bloemfontein High Court in the Free State on 22 February 2022 . (Photo: Lihlumelo Toyana)

Suspend ANC Secretary-General Ace Magashule outside the Bloemfontein High Court with supporters the on 22 February 2022 . (Photo: Lihlumelo Toyana)

Hodes disagreed that the responsible person in question was Magashule, who has claimed: “In terms of my duties as premier, I was not even remotely near to any initiation, adjudication and awarding of any tender-granted service providers.” 

Hodes argued that the State had erred in charging Magashule in terms of the Public Finance Management Act (PFMA), because the failure to exercise oversight, of which Magashule is in part accused, did not fall within his ambit according to the prescripts of the PFMA.

In response, Cassim pointed out that Magashule was in fact not charged in terms of the PFMA – an error which Hodes grudgingly acceded to – and repeatedly accused Magashule’s legal team of failing to read the indictment properly.

But Hodes had other alleged procedural issues up his sleeve, accusing the State of failing to afford Magashule the opportunity to explain why he did not report corruption on his watch before his arrest, as is required in terms of another piece of legislation, the Prevention and Combating of Corrupt Activities Act.

Cassim did not directly deal with this allegation in his response in court, but the State has previously said that it did not want to broadcast its intention to arrest Magashule before the time arrived.

Another procedural problem Hodes raised as violating Magashule’s right to a fair trial was the State’s apparent bungling of the handling of Magashule’s former personal assistant Moroadi Cholota. The State initially announced that Cholota would be a State witness, which Hodes suggested implied that the charges against Magashule were “premised on the alleged testimony of Cholota”.

The State has since said that Cholota will instead be charged herself. Magashule’s legal team alleges that this change must have “impeded” the case against Magashule, leaving the available evidence even thinner, and further suggests that the implication to be drawn from correspondence between the State and Cholota in 2020 is that the case against Magashule was in no way complete at the time of his arrest.

Hodes said that this was a violation of Magashule’s rights; an increasingly testy Cassim responded: “Cases change, more evidence comes.” 

Suspended ANC Secretary-General Ace Magashule outside the Bloemfontein High Court in the Free State on 22 February 2022. (Photo: Lihlumelo Toyana)

The legal team of suspended ANC Secretary-General Ace Magashule outside the Bloemfontein High Court in the Free State on 22 February 2022. (Photo: Lihlumelo Toyana)

The timing of the investigation and arrest of Magashule was “extremely sinister”, Hodes maintained, claiming that investigations began “too late” – on 10 October 2020 – while Magashule’s arrest was “too quick” – exactly a month later.

The irresistible inference to be drawn is that the National Prosecuting Authority was leaned on by President Cyril Ramaphosa to make sure Magashule was arrested before the ANC’s step-aside rule was implemented in April 2021, Hodes charged. This would effectively neutralise Ramaphosa’s political opponent by ensuring that Magashule would be suspended pending the finalisation of his corruption case.

Hodes repeatedly alleged that the case against Magashule was “so obviously politically inspired”, while Cassim repeatedly responded that the defence was knowingly misrepresenting the charges against Magashule.

Cassim pointed to an email sent from Magashule’s office by his personal assistant soliciting funds allegedly awarded in the asbestos scam to pay the US university fees of Gupta ally Refiloe Mokoena’s daughter. Mokoena was the SA Revenue Service’s chief legal officer before being axed in 2021, and at one stage served as an acting judge.

Payment was made to settle the university fee bill after Magashule received a 2015 email from Mokoena which read: “Dear Premier, Please find details re: settling my daughter’s account.”

It was Hodes and not Cassim who quoted directly from the email and subsequent correspondence proving that the fees had been paid, because Hodes said that the emails did not prove any corruption at all.

“There’s nothing sinister with respect to a student… who qualifies for a bursary and goes overseas to study,” Hodes said, suggesting that the willingness of Magashule’s office to assist Mokoena’s daughter was in fact “quite commendable”.

Hodes said that in order to prove this transaction met the definition of corruption, the State would have to prove that Mokoena, either in her capacity as a lawyer or an acting judge, had returned the favour to Magashule in some way. There is no evidence of this.

Cassim remained resolute in his contention that Magashule’s team had failed to make any case for why the corruption charges should be dropped, arguing throughout that the majority of issues raised by Hodes should in any event be dealt with by the trial court.

Magashule, Cassim told the Free State court, cannot distance himself from “the fraud perpetrated on the people of this province”.

Judgment was reserved. DM

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