In a ruling handed down on Monday, Judge Soma Naidoo dismissed the application by Ace Magashule and his three co-accused to have corruption charges dropped, on the grounds that the four men had not made any compelling arguments for why the issues at hand could not be dealt with by the trial court when the case is heard.

The ruling was not unexpected: state prosecutor Nazeer Cassim had repeatedly reminded the judge, when the application was heard in February, that there were well-established legal precedents for the dismissal of the applications on the basis that the trial court should properly deal with the applicants’ concerns.

But the judgment will be a blow to Magashule nonetheless. As ill-conceived as his application may have been, it represented potentially his best shot at diffusing the corruption cloud hanging over him before the ANC’s end of year electoral conference.

Magashule, who has been suspended from his position as ANC secretary-general due to the pending corruption charges, hopes to challenge once again for a position in the party’s Top Six at the ANC’s conference. He will not be eligible to stand for election unless the charges have been dropped by December, or he has received an acquittal.

But with the next pre-trial hearing set down only for June, and a date for the actual trial commencement yet to be set, it seems virtually certain that the case will not be wrapped up by December. This is because aside from the perennial delays in South African courts, there are 16 accused to be prosecuted — and one of them, Magashule’s former personal assistant Moroadi Cholota, still needs to be extradited from the US to stand trial.

In her judgment, Judge Naidoo made it clear that she was not making a finding on the strength of the cases that the State has against the accused. They are charged with corruption, fraud and money laundering stemming from irregular contracts amounting to R255-million issued by the Free State government under the premiership of Magashule in 2015 to audit houses for traces of toxic asbestos.

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Of the 16 charged, only Magashule, Nthimotse Mokhesi (suspended head of the Free State department of human settlements), businessman Edwin Sodi (director of Blackhead Consulting), and Thabane Zulu (former director-general of the national department of human settlements) had applied to have their charges dropped.

One of the key elements of the applications brought by Mokhesi, Sodi and Zulu was that the state was not entitled to use “self-incriminating” evidence emanating from the State Capture Commission against them in criminal proceedings.

Judge Naidoo pointed out, however, that in several instances lawyers for the applicants appeared to have relied on an earlier draft of the commission’s regulations — one preferred by former president Jacob Zuma — which held that no evidence from the State Capture Commission would be admissible in subsequent criminal proceedings. Under the direction of President Cyril Ramaphosa, however, the regulations were amended to specify that only self-incriminating evidence was inadmissible.

The applicants’ arguments, wrote Judge Naidoo, “consistently and continuously emphasise that statements given at the State Capture Commission are not admissible in criminal proceedings, and gloss over the qualification that such statements must be self-incriminatory”.

The judge does not appear to have found the arguments relating to State Capture Commission evidence convincing. This is a significant point, because if the ruling had given the indication that this argument was likely to succeed, it would presumably have emboldened many subsequent defences to prosecutions stemming from State Capture Commission investigations.

Judge Naidoo wrote: “I remark, without making any finding, that… it appears as if the state can rely on [State Capture Commission] evidence”.

As a caveat, she added: “I am, however, aware that the trial court may view this differently, depending on what evidence and arguments are placed before it”.

Magashule Judgement

The judge also questioned a line of defence used by a number of the applicants: that they are charged with violating Precca, the Prevention and Combating of Corrupt Activities Act, but were not offered a chance to give an explanation before being arrested, as they claim the legislation requires.

Judge Naidoo pointed out that the opportunity to provide an explanation for the apparent contravening of Precca is only applicable to certain sections of the law, and that many of the charges rely on other sections.

These were, however, her only comments as to the viability of the applicants’ actual arguments. In general, Judge Naidoo found that the trial court should assess those claims.

“A long line of cases in our courts have entrenched the well-established principle that preliminary or premature litigation, especially in criminal matters… should be discouraged”, wrote Naidoo.

She pointed out that the four accused have not even pleaded to the charges yet. Her court was “being called upon to consider these applications in a vacuum”, without a clear view of the full evidence.

To uphold the applications, Judge Naidoo ruled, would amount to an “unfair advantage” for them over the State.

All four applications were dismissed, with Magashule and co further ordered to foot the State’s bill for two counsel. DM

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