South Africa's Constitutional Court has ruled that the extradition of Moroadi Cholota from the United States was unlawful, but her prosecution must proceed. The decision clarifies that the National Prosecuting Authority lacks the power to request extraditions, assigning that role to the national executive. This ruling provides a lifeline to ongoing cases while addressing long-standing legal practices.
On 23 January 2025, South Africa's Constitutional Court delivered a unanimous judgment in the case involving Moroadi Cholota, former personal assistant to ex-Free State premier Ace Magashule. Cholota was extradited from the US in August 2024 to face charges of fraud, corruption, theft, and racketeering linked to the R255-million asbestos scandal. The court, led by Deputy Chief Justice Dunstan Mlambo, overturned a Free State High Court ruling that had halted her prosecution on grounds that the extradition request came from the Director of Public Prosecutions rather than the national executive.
The justices confirmed the extradition was unlawful, as the National Prosecuting Authority (NPA) lacks authority to make such requests, which involve foreign relations and fall under executive powers. However, the court emphasized that this procedural error does not undermine criminal jurisdiction unless it brings justice into disrepute. 'A court is only divested of its criminal jurisdiction in cases where the exercise thereof would bring the administration of justice into disrepute,' the judgment stated. Prosecutors had acted in good faith, believing they held the necessary authority.
NPA spokesperson Bulelwa Makeke welcomed the outcome, noting it allows focus on other aspects of Cholota's case. The ruling also corrects a Supreme Court of Appeal decision, stating that extradition authority lies with the national executive broadly, not solely the justice minister. This preserves prosecutorial independence while limiting NPA's role to domestic preparations.
In a related matter, the court dismissed the NPA's late appeal in the Jonathan Schultz extradition challenge, criticizing delays and ordering costs against the NPA. Schultz had contested the NPA's decades-long practice of handling extraditions, a stance upheld by the Supreme Court of Appeal in December 2024. The decision ensures future requests follow proper channels without retroactively invalidating all prior cases.
