By Lehlohonolo Lehana.
The National Prosecuting Authority (NPA) has filed an application asking for the Supreme Court of Appeal (SCA) to resolve key legal questions following a ruling that declared the extradition of Moroadi Cholota from the US to South Africa unlawful.
The application follows hot on the heels of a dramatic ruling that declared Cholota’s extradition from the US unlawful, and the state is now pulling every constitutional and procedural fulcrum to challenge the decision.
Cholota challenged the legality of her extradition from United States. She argued the court had no jurisdiction to hold her criminally liable.
Cholota is one of 18 accused in relation to the R255 million asbestos removal tender.
While pursuing studies in the United States, Cholota was arrested earlier this year following an extradition request by South African authorities. She was subsequently extradited and arrived in South Africa on 8 August 2024.
She was granted R2 500 bail and began her various court bids to have her overturned back in August.
In his ruling, Judge Phillip Loubser said that the State conceded to some of the falsehoods used to secure Cholota’s extradition.
“I make the following order: the extradition of Cholota from the United States to South Africa is found to have been done unlawfully for want of a valid request for her extradition by the South African executive.”
The Judge pointed out that the State had two months to correct this anomaly after the SCA made the ruling, but it opted to proceed with the flawed extradition process, which is against the constitution and the statutes around extradition of wanted individuals.
The application by state prosecutor Advocate Johan de Nysschen, filed under Section 319 of the Criminal Procedure Act, signals a shift from mere damage control to an aggressive push for legal clarity. Central to its strategy is the argument that the trial court misapplied the landmark Schultz v Minister of Justice and Correctional Services decision.
Section 319 of the CPA is designed for cases where the parties believe the trial court has made an error in interpreting or applying the law, rather than in assessing the evidence or facts.
According to the NPA, the judge’s decision not only undermined the legal process but also initiated a potential gap in justice surrounding the serious allegations presented in the case.
NPA believe that their forthcoming appeal holds a substantial prospect of success, contending that Loubser erred in his dismissal and failed to appropriately address important legal inquiries.
“There are compelling reasons for this petition to be heard,” said NPA national spokesperson, Mthunzi Mhaga.
Meanwhile the NPA confirmed that it would reinstate the fraud and money-laundering charges against the eight corruption accused in the Nulane Investments trial after successfully appealing their acquittal.
The SCA ruling provided some comfort for the NPA a week after the Bloemfontein high court ruled that it did not have jurisdiction to try Cholota. The NPA is seeking to overturn this ruling as well.