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High court erred in its decision, says Ace Magashule as he launches another court bid

08 April 2022 - 19:38
Suspended ANC secretary-general Ace Magashule outside the Free State high court in Bloemfontein in October. Magashule and 15 co-accused face charges relating to a R255m asbestos roofing eradication project.
Suspended ANC secretary-general Ace Magashule outside the Free State high court in Bloemfontein in October. Magashule and 15 co-accused face charges relating to a R255m asbestos roofing eradication project.
Image: Gallo Images/Volksblad/Mlungisi Louw

Embattled ANC secretary-general Ace Magashule says the high court in Bloemfontein erred in its decision to dismiss his bid to have his charges in the Free State asbestos case dropped before trial.

Magashule’s application was dismissed with costs by Judge Soma Naidoo last week. 

In papers filed on Thursday, Magashule said he intended to apply for leave to appeal against the entire judgment and order.   

“All the pertinent facts were placed before the honourable Mrs Justice Naidoo and when compared to the bald, sketchy and untenable version tendered by the state, the honourable Mrs Justice Naidoo erred in not granting any relief and by dismissing the applicant’s application with costs.   

“Based on the above, there are reasonable prospects of the applicant succeeding on appeal and, therefore, reasonable prospects that another court would come to a different conclusion.”   

, Magashule argued that Naidoo also did not deal with the state’s striking out application concerning certain portions of his founding and replying affidavits.

“Counsel for the applicant made submissions to dismiss the state’s striking out application, yet the order and judgments are silent in this regard.”  

Initially, Magashule sought the following relief:  

— The court to declare that the state had not complied with section 27 of the Prevention and Combating of Corrupt Activities  Act 12 of 2004.

— The court to declare that his former PA Moroadi Cholota was never a state witness, alternatively  a defence witness. 

— Declaring that the state does not have a prima facie case against him, capable of sustaining a successful prosecution.

— Compelling the state to disclose the list of witnesses which specifically implicate him in any and all of the charges as contained in the indictment

In dismissing the application, Naidoo said: “In my view these are civil motion proceedings, where if the “Plascon-Evans Rule were to be applied, the matter should be decided on the respondent’s version that the applicant agrees with or does not dispute. 

“From what I have said, it is obvious that there are serious disputes of fact which cannot be resolved on these papers. For these and all other reasons I have set out above, it is not appropriate for this court to entertain these applications and they must each fail.” 

Magashule wants leave to appeal to the Supreme Court of Appeal. 

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