In a dramatic and precedent-setting judgment handed down on Friday morning, South Africa’s highest court has declared the state’s extradition of key State Capture witness and accused, Moroadi Cholota, from the United States to be unlawful. However, in a critical nuance that preserves the heart of the National Prosecuting Authority’s (NPA) case, the Constitutional Court unanimously stressed that this procedural flaw does not render her subsequent arrest and detention invalid, nor does it stop the South African courts from proceeding with her criminal trial.
The ruling, delivered by Justice Leona Theron, centers on the technical but fundamental processes underpinning international legal cooperation. Cholota, a former personal assistant to suspended Deputy President Paul Mashatile, was extradited from the US in late 2025 to face charges of fraud, corruption, and money laundering related to the multi-billion rand State Capture saga. Her legal team mounted a vigorous challenge, arguing that the Minister of Justice and Correctional Services, Ronald Lamola, failed to follow the precise dictates of the Extradition Act when authorising the request to the US authorities.
The Core of the Flaw: A Ministerial Misstep
The Court found that Minister Lamola, in his executive authority, had committed a “material irregularity” by not strictly adhering to the dual-criminality verification process required by the Act before forwarding the request. Essentially, the Court ruled that the Minister’s office did not sufficiently certify that the alleged crimes for which Cholota was sought were recognized as offenses under both South African and American law at the time the extradition request was initiated.
“This failure goes to the root of the extradition process,” Justice Theron wrote in the summary. “An extradition is not merely an administrative act but a solemn exercise of state power that must meticulously respect the rights of the individual and the strict terms of the law. The Minister’s deviation, while not found to be in bad faith, rendered the process from that point onward unlawful.”
A Narrow Remedy: Trial Continues, But With a Caveat
Crucially, the Court drew a sharp distinction between the lawfulness of the extradition process and the jurisdiction of South African courts to try her. The judgment emphatically rejects Cholota’s argument that the entire prosecution was “tainted” by the flawed extradition.
“The unlawfulness of the extradition is a discrete issue,” the judgment states. “It does not infect the legitimacy of the charges themselves, which are based on South African law and allege crimes committed on South African soil. The courts of this country retain their inherent jurisdiction to hear this matter. Ms. Cholota is now physically present before the court, and the trial must proceed in the interests of justice.”
The practical effect is a significant but contained victory for Cholota’s defense. While the ruling condemns the state’s conduct in bringing her to South Africa, it denies her the ultimate goal of having the case thrown out. The court granted a declaratory order stating the extradition was unlawful but did not set aside her current arrest or the indictment.
Legal and Political Shockwaves
The decision sends immediate shockwaves through the legal community and the ongoing State Capture trials. Legal experts hail it as a masterclass in constitutional balance—upholding the rule of law and procedural rigor while preventing alleged criminals from exploiting technicalities to evade trial.
“This is the judiciary saying to the executive: ‘You must do your job properly, but you cannot hide behind your own mistakes to deny justice,'” explained constitutional law professor Michele O’Sullivan. “It strengthens the procedural safeguards for individuals in extradition cases while closing a potential loophole that could have derailed multiple complex international prosecutions.”
For the NPA’s Investigating Directorate (ID), the ruling is a relief tinged with reprimand. Their flagship case against Cholota, seen as pivotal to unlocking further evidence against higher-profile figures, remains on track. However, the judgment serves as a stern warning about the need for flawless execution in highly sensitive, international legal maneuvers.
Spokesperson for the ID, Advocate Sindisiwe Seboka, stated: “We note the Court’s findings on the extradition process and will study the judgment to ensure all future engagements meet the highest standards. Our primary focus remains on presenting our evidence against Ms. Cholota in the criminal trial, which the Court has unequivocally affirmed must go ahead.”
For Moroadi Cholota, the ruling is bittersweet. She returns to the dock, not as a free woman, but with a formal judicial finding that the state acted unlawfully in securing her return—a fact her defense is likely to leverage in arguing for the exclusion of certain evidence or for mitigation in sentencing, should a conviction follow.
As the Pretoria High Court prepares to resume the criminal trial, the Constitutional Court’s message echoes: in South Africa’s arduous journey to address State Capture, even the pursuit of justice must be conducted with scrupulous adherence to the law. The trial will continue, but under the shadow of a state that has been found wanting in following its own rules.
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