Former Free State premier believes he secured his erstwhile personal assistant as a defence witness, while the prosecution wants her to be a State witness.
SUSPENDED ANC secretary-general Ace Magashule plans to fight for his former personal assistant, Moroadi Cholota, to be declared his defence witness when his fraud, corruption and money-laundering trial begins.
On Wednesday, Magashule’s advocate, Laurence Hodes SC, indicated that the former Free State premier intended to bring an application to have Cholota’s status as a defence or State witness determined.
Magashule, his 10 co-accused, including controversial businessman Edwin Sodi, and five companies appeared briefly in the Free State High Court for a pre-trial hearing before Judge President Cagney Musi.
Hodes told the court that the case of the former ANC Free State provincial chairperson was premised on that he and Cholota were represented by Victor Nkhwashu Attorneys, the law firm that prepared her statement when she gave evidence before the commission of inquiry into state capture in June 2019.
According to Hodes, when Cholota was called to testify before the commission chaired by Acting Chief Justice Raymond Zondo, she was represented by Nkhwashu, who compiled and signed her statement, which was exculpatory (evidence that clears) of accused number 13 (Magashule).
He said thereafter his client was called to appear and presented himself before the court on November 13, 2020, where, for the first time, he was told that Cholota was now a State witness and his legal team was not entitled to communicate with her as part of his bail conditions.
“We believe that is, firstly, factually incorrect, because we had already had a statement from her as a defence witness, and we had addressed correspondence to my learned friend (prosecutor Johan de Nsschen) in this regard, because it was placed on record both in the inquiry and in correspondence that Nkhwashu represented Cholota,” Hodes said.
He said from documents handed over to Magashule’s legal team, it became apparent that Cholota never signed the statement for the State, whereas they have a signed statement from her pre-dating her appearance before the commission in June 2019.
“They do not, as per the docket, have a signed statement from her, so we believe that it is incorrect for the State to record her as a State witness and to say that they are calling her, when we had as a defence witness and there is authority in that regard,” explained Hodes.
He said even if the State wished to approach her or wanted to turn her, “for want of a better terminology”, they ought to have spoken to Nkhwashu notifying him, but did not do so from June 2019 until Magashule appeared in court in November last year.
“That was meant to be their so-called star witness, and it would appear that she isn’t a witness, because she has not signed a statement to them. It has become apparent that they have not secured her assistance. It must be decided prior to the trial whether she is a compellable or compatible witness, and what her status is,” said Hodes.
However, in response, prosecutor De Nsschen said that once Cholota was before the court, her status could be addressed in a trial within a trial, and the presiding judge could decide whether she would be a defence witness or a State witness or the court’s witness.
“But at the end of the day, her evidence will be under oath in an open court, whether on behalf of the defence, State or the court, but it is not for this court, in all due respect, to decide now,” he said.
Judge President Musi said it was not necessary for Cholota’s status to be dealt with prior to her testifying, because she was one witness.
“That is something you can argue before the trial,” he said.
The matter was postponed to October 19.
POLITICAL BUREAU
