A Free State high court judge, Mpina Abednego Mathebula, has failed in his bid to permanently stop the continuation of his theft and money-laundering case related to the alleged misappropriation of Road Accident Fund (RAF) monies when he was an attorney.
The Supreme Court of Appeal on Friday dismissed Mathebula’s appeal against a Free State High Court order, which had dismissed his application for a permanent stay of prosecution.
The criminal charges Mathebula face arose from his time while running a law firm in Sasolburg more than 10 years ago and have nothing to do with his duties or service as a judge.
Mathebula is charged together with Tswantso Phillemon Melato, who took over Mathebula’s law firm when the latter was appointed as a judge in 2017. Melato has since been struck off the roll of attorneys. The state alleges Mathebula committed the crimes between July 2012 and May 2018.
In 2010, an elderly woman instructed Mathebula’s law firm to institute action against the RAF on behalf of her minor grandson, who had sustained bodily injuries in a motor vehicle accident. After the institution of the claim in the high court, the court awarded the child R2.2m plus costs, to be paid by the RAF.
The state summoned Mathebula to appear in the Kroonstad specialised commercial crimes court in March 2023 to face charges of theft, alternatively fraud, money laundering and contempt of court.
The state alleged Mathebula failed to deposit and keep the R2.2m in a trust investment account and also failed to establish a trust as ordered by the high court.
The state further alleged Mathebula made various unlawful transfers from the law firm’s trust account into his business account. These transfers were allegedly made from money held in trust to Mathebula’s credit.
Before his first court appearance in 2023, Mathebula instructed his attorneys to make representations to the Free State director of public prosecutions to have the criminal charges withdrawn. When that request was declined, a further request to the national director of public prosecutions met the same fate.
Mathebula then approached the Free State High Court to apply for a permanent stay of prosecution.
The high court refused to grant the permanent stay of prosecution. It held that the relief sought by Mathebula was drastic and should only be granted sparingly and in compelling circumstances.
Mathebula then appealed against the high court’s decision to the SCA, which heard his application in September. The appellate court, comprised of five judges, dismissed his appeal.
It held that two Constitutional Court judgments provided authority on permanent stays of criminal prosecutions.
“The upshot of these decisions is that to succeed with an application for a permanent stay of a criminal prosecution, an applicant must, in the main, prove trial-related prejudice,” the SCA said.
The SCA said in the present case, Mathebula did not raise trial-related prejudice such as an unreasonable delay in the commencement and finalisation of his criminal trial.
The SCA said his complaint was two-fold: first, that the charges lacked a proper legal foundation; and second, that he was suffering undue social prejudice and financial loss because of the prosecution.
“None of these constitutes trial-related prejudice.”
On the first complaint, the SCA said this concerned the merits of the state’s case, which only the trial court could determine.
“As to social prejudice and financial loss, these are inherent inconveniences suffered by every accused and are not regarded as trial-related prejudice.”
In dismissing the appeal with costs, including the costs of two counsel, the SCA said in cases of this nature, it did not necessarily follow that the dismissal of the application must result in an adverse costs order.
However, this was not a fixed rule. It said Mathebula would have been aware that there was no trial-related prejudice in the grounds he relied upon for his application. The court said Mathebula established no exceptional circumstances warranting intervention in the pending criminal proceedings.
“As the authorities make plain, frontal challenges that serve only to delay criminal trials should be discouraged, unless well-grounded,” it said.
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