Extradition Authority
Johannesburg – The Constitutional Court has delivered a pivotal judgment clarifying that the power to request extraditions from foreign countries rests solely with the national executive, not the National Prosecuting Authority, in a decision that reshapes how South Africa handles the return of accused individuals from abroad. This ruling, handed down on Friday, 23 January 2026, stems from the case of Moroadi Cholota, whose extradition from the United States was deemed unlawful, yet it allows her criminal trial to proceed without the flaw blocking the courts’ jurisdiction.
Deputy Chief Justice Dunstan Mlambo, in his first judgment since joining the apex court, led a unanimous bench in addressing the appeal by the National Prosecuting Authority. The decision balances the need for strict adherence to legal processes with the urgent fight against corruption and crime, ensuring that procedural errors do not let suspects evade justice entirely.
Roots in the Asbestos Corruption Scandal
The case traces back to a major corruption probe in the Free State, where a R255 million tender was awarded in 2014 for auditing and removing hazardous asbestos from homes. Intended to protect vulnerable communities from health risks like respiratory illnesses, the project instead became mired in allegations of fraud, money laundering, and kickbacks. Funds meant for public good were allegedly diverted to benefit politicians and connected businesspeople.
Moroadi Cholota, who served as personal assistant to then-Free State premier Ace Magashule, stands as one of 18 accused in this scandal. Others include Magashule himself, businessman Edwin Sodi – infamous for controversial government contracts – and various officials and company heads. Prosecutors allege Cholota helped orchestrate improper payments and conceal the misuse of state money, turning her from a potential witness into a key defendant.
After the allegations surfaced, Cholota fled to the United States. South African authorities located her, and in August 2024, she was extradited back through cooperation with US officials under international agreements. Upon her return, she challenged the process in the Free State High Court in Bloemfontein, arguing it was fundamentally flawed and barred any trial.
High Court’s Initial Blow to the Prosecution
In June 2025, Free State High Court Judge Phillip Loubser sided with Cholota. He ruled her extradition unlawful because the request came from the National Prosecuting Authority’s Free State division, not the appropriate government authority. Loubser drew on a recent Supreme Court of Appeal precedent in the case of Johnathan Schultz, a South African wanted for theft who resides in the US.
In Schultz’s matter, the Supreme Court of Appeal had determined in May 2024 that only the national executive – specifically figures like the justice minister – holds the power to make such international requests. This stems from the Extradition Act and international law principles, where extraditions are state-to-state affairs handled by executive branches, not prosecutorial bodies. Loubser found that the National Prosecuting Authority overreached, even providing misleading information to US authorities about the request’s origin.
Crucially, the judge went further, declaring that this irregularity stripped the High Court of jurisdiction – the legal authority to hear the case. Without it, Cholota could not be tried, leading to her release and stalling the broader asbestos trial. This outcome raised alarms about technicalities undermining anti-corruption efforts, prompting the National Prosecuting Authority to appeal directly to the Constitutional Court for clarity on both the extradition process and court powers.
Constitutional Court’s Balanced Verdict
In the unanimous ruling, Deputy Chief Justice Mlambo affirmed the unlawfulness of Cholota’s extradition. The court agreed that the National Prosecuting Authority lacks the statutory authority to initiate extradition requests to foreign states. “The NPA does not have the power to file extraditions to foreign states,” the judgment stated, reinforcing that this responsibility belongs to the national executive.
However, the court rejected the High Court’s rigid stance on jurisdiction. Mlambo explained that not every procedural flaw in bringing an accused back should automatically halt a trial, especially in grave matters like corruption. “Such reasoning is not supported by the facts and would not strike an appropriate balance between the concern for lawful process and the imperative to combat impunity,” he noted. The decision emphasizes evaluating the overall interests of justice, preventing a blanket rule that could shield fugitives.
As a result, the appeal succeeded in part: The High Court’s full ruling was overturned, and Cholota’s case was remitted back to the Bloemfontein High Court. There, judges will reconsider her special plea and proceed with the trial if warranted. This clears a major hurdle for the asbestos prosecution, which has faced delays due to appeals and absent defendants.
In a linked appeal involving Schultz, the court refused to condone the National Prosecuting Authority’s three-month delay in filing, leading to that bid’s failure. This highlights the importance of timely action in legal challenges.
Clarifying Extradition Authority
The judgment provides much-needed guidance on who can act for South Africa in extradition matters. It confirms that the power lies with the national executive, which encompasses but is not limited to the minister of justice. This aligns with the Constitution, the Extradition Act, and international treaties, where such requests engage diplomatic and executive functions rather than prosecutorial ones.
Previous views pinning the role solely on the justice minister were corrected; the executive’s broader structure allows for designated officials, ensuring flexibility while maintaining accountability. This stems from principles of international law, where states communicate through their executive arms to avoid confusion or overreach by independent bodies like prosecutors.
The ruling builds on the Supreme Court of Appeal’s Schultz decision, which overturned a High Court finding that the National Prosecuting Authority could handle requests. In Schultz, the court stressed that the minister is central to administering the Extradition Act, with decision-making vested in the executive to uphold state sovereignty.
Immediate Responses and Broader Implications
Justice Minister Mmamoloko Kubayi swiftly responded to the ruling, instructing the National Prosecuting Authority and her department’s legal team to review all ongoing extradition cases within two weeks. This aims to identify any similar procedural errors and ensure compliance moving forward, preventing future disruptions.
The National Prosecuting Authority welcomed the outcome, noting it provides finality and supports their anti-corruption drive. For Cholota, it means facing trial despite the extradition mishap, potentially accelerating the asbestos case and revealing more about alleged state fund misuse in the Free State.
On a wider scale, the decision could impact other high-profile extraditions, such as those involving fugitives abroad in corruption probes. It warns government entities to respect their boundaries, avoiding costly mistakes that delay justice. Legal experts see it as strengthening the system by prioritizing accountability over loopholes, while reminding officials that processes must be followed meticulously.
This precedent reinforces South Africa’s commitment to fair trials and international cooperation, ensuring that the pursuit of justice remains robust even when errors occur. As the Bloemfontein High Court takes up the matter again, communities affected by the asbestos scandal hope for closure and restitution, underscoring the human cost behind these legal battles.
Moving Forward in the Fight Against Corruption
The ruling serves as a reminder of the delicate balance in South Africa’s justice system, where procedural integrity must coexist with effective crime-fighting. With the case remitted, attention turns to the High Court, where Cholota’s fate – and potentially that of her co-accused – will be decided. In a nation still healing from state capture eras, such decisions bolster public trust that no one is above the law, no matter the complexities involved.
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