Former Free State head of housing Tim Mokhesi and businessman Edwin Sodi yesterday accused the National Prosecuting Authority (NPA) of using their testimonies at the state capture commission as evidence in the asbestos corruption case.
Suspended ANC secretary-general Ace Magashule, former national Human Settlements Department director-general Thabane Zulu, Sodi and Mokhesi want Judge Soma Naidoo to order the NPA to withdraw charges relating to a R255 million contract to audit houses with asbestos roofs in the Free State.
The court heard that Sodi, Mokhesi and Zulu were arrested after they gave evidence at the Zondo Commission of Inquiry Into Allegations of State Capture.
Lawrence Hodes SC, representing both Magashule and Sodi, said the businessman was arrested after ANC Free State interim provincial committee convener and Co-operative Governance and Traditional Affairs MEC Mxolisi Dukwana testified at the state capture inquiry in 2019.
Hodes complained that the commission did not inform Sodi that he was going to be implicated by Dukwana, as provided for in its regulations.
Mokhesi's lawyer, Christo Meiring, told the court that his client's evidence given to the commission infringed on the free trial rights of the applicant as provided for in section 35 of the Constitution.
"This application hinges on the evidence given by the applicant before the Zondo commission in August 2020, and then again in September 2020. He was required to respond to questions from the state capture commission's investigators in January and February 2020," he said.
According to Meiring, Mokhesi gave evidence that was incriminating.
"I don't think that is in dispute," he said.
Judge Naidoo asked: “Is all his evidence self-incriminatory and cannot be relied on?"
Meiring said large portions of it were, but his client had realised with hindsight that he had not handled his testimony correctly. He said Mokhesi was arrested after he testified at the state capture inquiry.
Magashule, speaking outside the court yesterday, claimed that he had no case to answer to.
"There is no case here. The NPA is just fumbling," the ex-Free State premier said, adding that he had never been the accounting officer.
"It was a political case. The NPA is lying. They must explain why I am on this case. I have nothing to answer for,“ he said.
Nazeer Cassim SC, who is representing the NPA, said the application by Magashule, Sodi, Zulu and Mokhesi was delaying the airing of the true facts in the criminal trial, and that if they succeed there was a risk that such a move would create one law for the rich, and another for the poor.
"It is obnoxious to access to justice, and it is something I urge this court not to be part of. This application must be refused," he said.
According to Cassim, "Somebody must take accountability whether it's the premier, whether it filters through, it's called accountability. That relief which he (Mokhesi) asks for is simply inept in law," he said.
Cassim said the withdrawal of charges was a matter that should be left for a trial judge and not Judge Naidoo, who is hearing the bid to have the criminal charges quashed.
He said the R255m contract was money for buddies.
"It's a hopeless application. We ask the court to dismiss it," he said.
Earlier, Judge Naidoo postponed the criminal trial to June 10.
Prosecutor Johan de Nysschen revealed that the NPA had applied for the extradition of Magashule's former personal assistant, Moroadi Cholota, from the US.
"The State is busy with an extradition application, the papers have been filed so the process is ongoing as we speak," said De Nysschen.
Cholota is likely to also face charges relating to the R255m contract after initially being identified as a State witness.
ANC national executive committee member and one of Magashule's staunch backers, Dakota Legoete, told Independent Media the State's case was getting weaker and weaker.
"It is clear that the secretary-general was not an accounting officer at the time. The case against him is malicious," he said.
Legoete described the case as “an injustice, a travesty of justice".
"So far the state does not even have a witness," he said.
The application to have the charges withdrawn will continue on Tuesday.
Political Bureau