Moroadi Cholota, the ex-personal assistant to former Free State premier Ace Magashule, is set to launch a constitutional damages lawsuit against the South African state.
The claim is founded on what court documents already describe as “intimidation, coercion and mental torture” by state officials in the high-profile prosecution that has gripped the country.
In contrast to suing for unlawful arrest, suing for constitutional damages involves seeking compensation for violations of constitutional rights enshrined in the constitution, including unlawful arrest.
In Cholota’s case, constitutional damages offer a pathway to address state-enabled trauma beyond mere detention. She would argue that her return to South Africa through extradition from the US was not only unlawful but also a humiliating spectacle orchestrated by the very government meant to protect her constitutional rights, Sunday World learnt.
The Free State High Court found on Tuesday that the NPA did not have jurisdiction to apply for extradition, which should be the role of the justice department.
In the heads of argument to support her now dismissed criminal charges, Cholota’s legal team, led by Advocate Loyiso Makapela, alleges that her constitutional rights were “grossly infringed” during investigations and subsequent legal proceedings.
In his ruling setting Cholota free, high court Judge Phillip Loubser noted among Cholota’s plea submissions that “what appears pertinently clear is that it is undeniable that the State presented false and incorrect information to US authorities.”
“Two South African courts have already made this finding. The US authorities relied on this information in good faith and actioned the extradition on an unknowingly unlawful basis,” Loubser noted.
This included the Bloemfontein Magistrate’s Court’s bail ruling that there was no evidence to support claims that Cholota was a “fugitive from justice” and a “flight risk” when the state knew that she was in the US to study.
“The state later claimed that it was mistaken that she had Kenyan connections and had only assumed this due to the fact that she had three layovers in Kenya while flying to other destinations. The US was never apprised of this mistake nor the layovers.
“In another affidavit under sworn oath, the state claimed that it had made the above mistake because the accused has a child in Nigeria and that they had mistook Nigeria for Kenya,” according to the plea noted by Loubser.
More instructively, in another Free State High Court ruling, Acting Judge Johannes Hefer found that “it can be taken as a fact that the information provided by the state had been incorrect… It is patently clear that the state is therefore to be blamed for putting this incorrect information before [the US] court during the extradition proceedings. The state should have made certain of its facts.
“I agree with the submissions…to the effect that the state would provide false, incorrect information to authorities of another country concerning a South African citizen presents a serious public interest concern and has serious implications on the interest of justice. I also agree with his submission that the above conduct by the state grossly infringes on international law and constitutional law.”
Central to Cholota’s case are claims in court records that state investigators, in their zeal to build a case against Magashule, crossed the line into unlawful coercion. This, according to arguments, amounts to investigators’ “coercion”, a clear violation of the constitutional protection against self-incrimination. Even more troubling, Cholota alleges that her subsequent prosecution was an act of retaliation when she refused to provide the statements police wanted.
A further bombshell comes in testimony from Captain Benjamin Calitz, a state witness, who conceded under oath that “the fact that Ms Cholota did not attribute certain instructions to her former boss had the result that she was then treated as a suspect,” according
to records.
The court documents also lay out a series of alleged procedural violations. It is not disputed that Cholota was left legally unrepresented during crucial interviews with Calitz and Brigadier Nico Geber – now promoted to major general.
Makapela highlights that this is a violation of Section 35(5) of the Constitution, which protects suspects’ right to legal counsel. Furthermore, cross-examination revealed that police “knew there was a possibility of Ms Cholota incriminating herself but did not inform her of her right against self-incrimination”.
NPA spokesperson Mthunzi Mhaga said this week that the state was looking at appealing the Cholota ruling, adding that officials at all times acted above board. “We will respond as and when we are formally served with papers but it should be noted that during trial within a trial the merits and/or strength of the state case was never ventilated nor adjudicated,” he said yesterday.
