Mokhesi loses state-funded legal aid bid after failing to seek release of assets

The Free State High Court has dismissed an application by an accused in the long-running Free State asbestos scandal case for state-funded legal representation, finding that he had failed to prove that he was unable to afford his own legal fees.

Nthimotse Mokhesi, a former head of the Free State department of human settlements, is one of 18 accused facing multiple charges of fraud, corruption and money laundering in connection with the controversial asbestos removal contracts.

Mokhesi is accused of receiving R5m in gratification after contracts worth about R230m were awarded to contractors, though the work was allegedly never completed.

Though the accused pleaded to the charges against them more than 18 months ago, the criminal trial on its merits is yet to get under way.

Mokhesi brought the court application seeking that Legal Aid South Africa be directed to provide him with legal representation at state expense in the criminal proceedings. This was after Legal Aid had refused his request for state-funded legal assistance because he had failed a means test.

In his application for legal aid, Mokhesi stated it had become impossible for him to afford the ongoing assistance of a private legal representative in the criminal trial.

In the past six years he had already incurred legal fees of R8.2m in relation to the charges he was facing, he argued. In addition, Mokhesi said he had now received a statement of account in the amount of some R2.8m from his attorney, which he has to pay to secure their services for the next 10 weeks of the trial proceedings.

After Legal Aid in Bloemfontein refused his application, Mokhesi lodged an internal appeal to the provincial executive of Legal Aid South Africa. This appeal was automatically referred to the national office of Legal Aid, where it was dismissed by the constitutional case management committee.

As for his personal circumstances, Mokhesi said his assets consisted of two immovable properties, movable property including four vehicles, bank accounts and pension benefits which were all placed under a provisional preservation order in terms of the Prevention of Organised Crime Act in September 2020.

“This order was made final in November 2020,” said judge Phillip Loubser in a judgment passed on Monday.

Mokhesi, 66, said he and his wife, who are married in community of property, have three dependent major children.

He said his sole source of income was a government pension in the amount of some R20,000 per month and an Old Mutual retirement policy paid monthly in the amount of R17,800.

Mokhesi said in June 2025, the curator bonis reported that he had made full disclosure of his assets and financial position.

“The entire net worth of his assets is estimated at some R8.3m. His wife earns R20,500 per month, which means that the joint income of the household is in the region of R71,000 per month,” Loubser said.

In response, Legal Aid said Mokhesi’s financial documents showed a gross monthly income of R86,579, consisting of R17,831 from Old Mutual, R23,748 from his pension fund, and R36,000 from Setlano Investments.

Legal Aid said assets to the value of R9.2m were also shown, consisting of R5.6,m for movable properties and R3.5m for immovable. This has the result that Mokhesi exceeds the means test on income by R76,194, and on assets by an amount of R8.4m, Legal Aid said in its affidavit.

Legal Aid said Mokhesi has not applied for funds to be released to fund his legal expenses in terms of the preservation order and has not taken any steps to downgrade his lifestyle.

In its judgment, the court placed particular emphasis on Mokhesi’s failure to approach the high court for permission to access assets that are subject to the preservation order.

Loubser said the preservation order provided a possible route for the applicant to obtain funding for his defence.

“This means that the applicant could at least have approached the high court for an order for the release of realisable property to the extent necessary to fund his legal representation in the criminal proceedings.”

Loubser said Mokhesi had not done so.

“Had he done so successfully, this application would not have been necessary.

Though Mokhesi’s application was dismissed, the judge made no order regarding costs.

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