American authorities have withdrawn the immigration violation case against former African National Congress (ANC) secretary-general Ace Magashule's Personal Assistant, Moroadi Cholota, but, says the State, she has broken her promise to return to South Africa to face the asbestos scam case against her.

Cholota had been a potentially pivotal witness for the State, which is attempting to prove that Magashule was a willing participant in a corrupt R255-million asbestos tender scheme that allegedly saw multiple high-ranking Free State government officials receive kickbacks from money meant to fund the removal of harmful asbestos from the homes of the province's poorest residents. 

Instead of the affected houses being safely rid of asbestos at a reasonable price, the State says, businessman Edwin Sodi and his 15 co-accused essentially embarked on a "rent-seeking" scheme that ultimately resulted in only R21-million worth of work being done. 

It is the State's case that Magashule's alleged take came in the form of school tuition for Gupta ally Refiloe Mokoena's daughter, electronic tablets, and R250 000 for the travel expenses of a delegation to Cuba. Those alleged gratifications were given through payments made by murdered businessman and asbestos tender beneficiary, Igo Mpambani, following email requests from Cholota.

He has denied any wrongdoing and claims the case against him is politically motivated.

Magashule, Sodi and two of their co-accused tried and failed to challenge the legality of their prosecution in the High Court and the Supreme Court of Appeal, which recently rejected their appeal attempts.

As a result, their trial is now provisionally scheduled to proceed from 15 April to 23 June next year.

Prosecutor Johannes de Nysschen told the Free State High Court in Bloemfontein on Friday morning that as a result of Cholota's failure to act on the undertaking to hand herself over, which was given by her lawyers in January, the State would be forced to seek her extradition again.

"So, apparently the undertaking went out the window. The whole extradition process will be revisited and re-engaged thereafter," he said.

De Nysschen then added: "So, she's not in South Africa yet, but as I indicated previously…whether [w]e have her or not, by the time this matter goes to trial, there will be no bar. We will carry on. If she's not available at the time, we will proceed without her."

The advocate representing Cholota, Teneille Govender, claimed on Friday that the young woman's lawyers had been unable to get instructions from her as a result of her being arrested in America. She insisted Cholota had not reneged upon her promise to return to South Africa.

"It's simply a case of [Cholota] being arrested subsequent to the undertaking being made and us not being in a position to obtain any further instructions," Govender said.

De Nysschen confirmed that Cholota was arrested days after her lawyers had given an undertaking that she would return to South Africa – without the State receiving "any notification from the Americans".

"Apparently, it was the department of Homeland Security that had arrested her on immigration contraventions. Now we were not informed. I only found that out after the fact," he said.

"But I received information in the meanwhile that, that case is being withdrawn against her. So, there's no pending case as we stand today against Ms Cholota in America. So, we are not part of the immigration processes. Her visa was lapsed, apparently, but we are not involved from our side as the National Prosecuting Authority (NPA) in that process. We are only concerned with the extradition application and that will now be revived because she did not come back to South Africa on her own volition."

Court documents previously revealed that Cholota had sent Magashule's prosecutors an email promising "100% cooperation" in the asbestos scam case against him "solely because I respect the law" – but later backed out of that arrangement.

According to court papers filed by Free State Director of Public Prosecutions Navilla Somaru, up until the State met with Cholota in the United States in November 2021, the NPA "was of the view that Cholota was a State witness, which was in keeping with the impression she created".

When detectives interviewed Cholota, however, Somaru said "she made an about-turn and failed to cooperate with the State".

It was then that the NPA decided to charge Cholota as the 17th accused in the asbestos tender corruption case.