Businessman Edwin Sodi and his company Blackhead Consulting will ask the high court to declare that the fraud, corruption and money laundering charges they face are unconstitutional.
Sodi suspended ANC secretary-general Ace Magashule, nine co-accused persons and five companies have been charged with multiple counts of fraud, corruption money laundering and contravening the Occupational Health and Safety Act relating to the R255 million project to eradicate asbestos roofing in the Free State.
The contract was awarded to Sodi’s company Blackhead Consulting.
Advocate Laurence Hodes SC, representing Sodi and Blackhead Consulting, yesterday told Free State Judge President Cagney Musi he has been instructed by his clients’ lawyers Fluxmans Attorneys to bring an application to have the charges against them declared unconstitutional.
According to Hodes, the basis for bringing the application was non-compliance in terms of section 35(1)(c) of the Constitution, which guarantees arrested persons the right not to be compelled to make a confession or admission even if there is evidence against them.
The section states that everyone who is arrested for allegedly committing an offence has the right not to be compelled to make any confession or admission that could be used in evidence against that person.
Hodes said it was a matter of public record that Sodi was compelled to testify before the commission of inquiry into state capture from August 2019.
He told Judge President Musi that after the amendment of regulation 11 of the regulations governing the commission chaired by Acting Chief Justice Raymond Zondo in July last year they allowed information obtained or would be obtained from the commission to be utilised in criminal prosecution.
”We had said to the Deputy Chief Justice (Zondo) that we acted for Sodi and that we will be answering all the questions but that the answers cannot be used against him. It was agreed and we proceeded on that basis,” Hodes said.
He continued: “Even after the amendments of regulations we did it once again… we said we are aware that there has been a change (of the regulations) and that we recorded that it was a continuation of his testimony. It was his third or fourth time that he was testifying and we made it very clear that it cannot be utilised”.
Hodes said the perusal of the docket shows that Sodi was compelled to testify prior to the regulations being amended and that he would answer all the questions but the evidence could not be utilised against him.
”We are aware that the evidence was being used against him,” he said, adding that Sodi was arrested on September 30 last year after concluding his evidence at the commission.
Hodes said perusal of the contents of the docket shows that the only time law enforcement agencies began the investigation into Sodi was on account of evidence provided at the state capture commission and thereafter with full knowledge of the fact that they were utilising that information after they compelled him to answer questions there.
”We say to charge him, not just the admissibility of evidence would be unconstitutional because while knowing that he was entitled to remain silent they compelled him to answer there. They investigated those answers and they called for the documents. That’s what we have in the docket here,” he said.
Prosecutor Johan de Nsschen said he and the investigators involved in the matter do not work for the Zondo Commission.
”This case is not based on evidence led at the Zondo Commission. To put it very bluntly and in plain English, the Zondo Commission evidence is nice to have. This case, I say again and I reiterate, is not based on the evidence before Justice Zondo,” he insisted.
However, De Nsschen also indicated that this did not mean they were not going to use the Zondo Commission evidence because it was in the open in the main for all to know and is available on the internet.
In Other News – State Capture Inquiry: I endorsed Molefe as Eskom CEO but did not know of his Gupta ties – Ramaphosa
President Cyril Ramaphosa said he was the one who recommended out of favour former Eskom CEO Brian Molefe.
He said he had no clue that Molefe would eventually be linked to state capture and the Gupta family.
Ramaphosa was giving Eskom-related evidence during his appearance before the state capture commission on Wednesday. learn more