By Johnathan Paoli
In a dramatic turn in the long-running R255 million Free State asbestos tender corruption case, Judge Philip Loubser of the Free State High Court has ruled that the extradition of Moroadi Cholota from the United States was unlawful, barring the court from trying her on any charges.
Delivering his judgment on Tuesday, Judge Loubser was unequivocal.
“What appears pertinently 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 ruled.
The judgment effectively removes the former personal assistant to ex-Free State Premier Ace Magashule from the dock, concluding a contentious trial-within-a-trial over her extradition.
Cholota, who had faced charges of corruption linked to the 2014 asbestos contract awarded to a joint venture between Diamond Hill Trading and Blackhead Consulting, is now free after spending nearly five months in custody between South Africa and the US, followed by bail of R2,500.
Loubser declared the court “precluded from trying the offences she is charged with as the unlawfulness of the extradition renders the jurisdiction of the South African criminal court void.”
He ruled that the South African executive had failed to lawfully request Cholota’s extradition.
“Ms Cholota, you are free to leave,” he said, adjourning the court.
The ruling follows two weeks of testimony in the trial-within-a-trial involving Directorate for Priority Crime Investigation (Hawks) officers Benjamin Calitz and Nicholas Gerber, who had interviewed Cholota in Washington D.C. in 2021.
Cholota, who was initially a state witness following her 2019 appearance at the Zondo Commission, was later charged after reportedly refusing to implicate Magashule.
The case against her unravelled as her legal team, led by Advocate Loyiso Makapela, argued that she was charged in retaliation for her refusal to cooperate.
It was revealed during proceedings that Hawks officer Calitz admitted to telling Cholota that lack of cooperation could result in prosecution. Judge Loubser remarked that the state did not dispute this.
Initially charged with corruption, fraud, and money laundering, only the corruption charge remained after the US refused to extradite her on the others.
Nonetheless, the court found even the remaining charge could not stand due to the illegality of the extradition.
The National Prosecuting Authority (NPA) had opposed Cholota’s special plea, arguing that it amounted to an improper appeal against her extradition.
NPA spokesperson Mthunzi Mhaga maintained confidence prior to the ruling, stating the prosecution believed the court had jurisdiction.
However, Tuesday’s judgment invalidates those assertions.
The judge criticised the prosecution for bringing charges that fell outside the scope of the US extradition order, adding that it was puzzling why withdrawn charges had ever been included.
The controversy surrounding Cholota’s extradition has been deeply contentious.
Her attempt to challenge a US court’s 7 June 2024 extradition ruling failed, as did her bid for direct access to the Constitutional Court in July 2024.
A further application to have her arrest and extradition declared unlawful was dismissed in January 2025 by the same court now ruling in her favour.
Earlier, it emerged that her bursary, awarded by the Free State government for her studies at Bay Atlantic University, was cancelled shortly before her extradition.
Defence Advocate Laurence Hodes accused the state of sabotaging Cholota’s academic future and misleading US authorities.
Cholota’s removal from the case leaves 17 remaining accused in the high-profile corruption trial, including Magashule, businessman Edwin Sodi, former Mangaung mayor Olly Mlamleli, and senior government officials.
All have pleaded not guilty to charges stemming from the multimillion-rand contract to audit and remove hazardous asbestos from Free State homes.
The trial is scheduled to continue until 23 June, with the fallout from Loubser’s decision raises fresh questions about the conduct of South African authorities in international legal processes and the treatment of whistleblowers turned accused.
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