NPA finds way to use dead witness’ evidence in Ace case

The National Prosecuting Authority (NPA) is forging ahead with the evidence of a deceased witness in a bid to nail Ace Magashule and co-accused in their corruption, fraud and money laundering case involving a failed asbestos housing project in the Free State.

Advocate Tsuaeli, who was ranked second among the 80 state witnesses lined up to testify against the accused, passed away after a tragic car accident in May last year.

During a virtual case management meeting with Free State judge president Cagney Musi on Thursday, the prosecuting authority confirmed it had enlisted the services of forensic firm, FTI Consulting, to summarise all the evidence, including the affidavit of the late Tsuaeli.

 The forensic report by FTI Consulting formed part of the amended 1.5-gigabyte docket that the NPA invited the legal representatives of the 16 accused to collect.

Accordingly, the state’s first witness would be a forensic auditor. The forensic report comprised of more than 600 pages, and the annexes and exhibits are approximately 30 000 pages.

The NPA intends to lead the witness on the whole document. Given that the accused would require more time to study the amended docket, it was agreed during the case management meeting that the start of the trial on April 15 was no longer feasible, and instead, the parties would meet in court on April 18 to set a new date.

In a correspondence on March 11, state prosecutor, Johannes de Nysschen, told the accused that the fact that Tsuaeli was deceased did not mean that his evi-dence could simply be ignored.

According to De Nysschen, such evidence could still be adduced in terms of Section 3 of the Criminal Procedure Act 45 of 1998, which deals with admissibility of evidence.

“In addition, the detectives have identified other witnesses to replace Tsuaeli. The affidavits are part of the latest copy of the docket,” said De Nysschen.

However, those sympathetic to the accused said that Tsuaeli’s evidence would amount to hearsay evidence and would be inadmissible in court.

“There is no way that the forensic auditor could know exactly what Tsuaeli meant with the contents of his affidavit without having interviewed him, but you cannot interview him [now] because he is no more,” said a source.

Responding to questions on the implications of Tsuaeli’s death, NPA. spokesperson Adv Mthunzi Mhaga said: “Kindly note that the NPA will not indulge the media in a blow-by-blow account on issues that relate to evidence or witnesses.”

Magashule, Sodi and co-accused face charges of fraud, corruption, and money laundering for the failed R250-million contract the Free State department of human settlements awarded to Sodi’s Blackhead Consulting for the assessment, audit and removal of asbestos roofing from various homes in the province.

According to the state, a portion of the money ended up in Magashule’s pocket.

In court documents, Tsuaeli, a former acting head of the department, testified that the asbestos contract was illegal and irregularly awarded.

He also submitted that the implicated officials blatantly lied to validate the deal. He would have further testified that the deal went through despite manipulation of treasury regulations and a lack of competitive bidding processes.

The publication learned that, at the time of his death, Tsuaeli was serving suspension at the Free State department of human settlements. Speakers at his memorial service intimated that the suspension was linked to ANC factional politics.

Magashule, the 13th accused in the case, which includes flamboyant businessman Edwin Sodi and his company, Blackhead Consulting, was part of a throng of mourners who attended Tsuaeli’s funeral.

Tsuaeli was not the first person the NPA lost as a witness. During Magashule’s bail hearing in November 2020, the state claimed that his ex-personal assistant, US-based Moroadi Cholota, was their star witness.

De Nysschen told the court in November 2020, during Magashule’s bail application, that Cholota was a state witness and Magashule was, consequently, not entitled to communicate with her.

After the Hawks and the FBI failed to convince Cholota to testify against Magashule, her former political principal in the Free State Premier’s Office,
they added her to the list of the accused.

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