Free State Judge Loses Supreme Court Of Appeal Bid To Halt Prosecution In RAF Theft Case

A Free State High Court judge, Mpina Abednego Mathebula, has suffered a setback after the Supreme Court of Appeal (SCA) dismissed his attempt to permanently halt criminal proceedings against him.

On Friday, the SCA rejected Mathebula’s appeal against a Free State High Court ruling that refused his application for a permanent stay of prosecution. The charges stem from his time as a practising attorney more than a decade ago and are unrelated to his judicial role.

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The allegations arise from Mathebula’s former law practice in Sasolburg and concern the alleged misappropriation of Road Accident Fund (RAF) monies.

He faces charges alongside Tswantso Phillemon Melato, who assumed control of the firm after Mathebula’s appointment to the bench in 2017. Melato has since been struck off the roll of attorneys.

RAF Claim at the Centre of Criminal Charges

According to the state, the alleged offences occurred between July 2012 and May 2018. The matter traces back to 2010, when an elderly woman instructed Mathebula’s firm to pursue a claim against the RAF on behalf of her minor grandson, who had been injured in a motor vehicle accident.

The High Court later awarded the child R2.2 million, plus legal costs, payable by the RAF. The state claims Mathebula failed to place the funds in a trust investment account and did not establish a trust as ordered by the court.

It is further alleged that Mathebula made unlawful transfers from the firm’s trust account into his business account, involving funds held in trust to his credit.

Failed Attempts to Stop Prosecution

In March 2023, Mathebula was summoned to appear before the Kroonstad specialised commercial crimes court, where he faces charges of theft, alternatively fraud, money laundering and contempt of court.

Before his first appearance, Mathebula made representations to the Free State director of public prosecutions to have the charges withdrawn. That request was declined, as was a subsequent appeal to the national director of public prosecutions. He then approached the Free State High Court seeking a permanent stay of prosecution.

The High Court dismissed his application, finding that such relief was drastic and should only be granted in exceptional and compelling circumstances.

Supreme Court of Appeal Cites Constitutional Court Authority

Mathebula took the matter to the SCA, which heard the appeal in September. A five-judge bench dismissed his case, relying on two Constitutional Court judgments dealing with permanent stays of prosecution.

“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 court found that Mathebula had not demonstrated such prejudice, noting that he did not allege an unreasonable delay in the start or conclusion of his trial.

Social and Financial Prejudice Rejected by Court

The SCA said Mathebula’s arguments were based on two grounds: that the charges lacked a proper legal foundation, and that he was suffering undue social prejudice and financial loss as a result of the prosecution.

“None of these constitutes trial-related prejudice.”

On the issue of the legal foundation of the charges, the court held that this went to the merits of the state’s case, which only the trial court could decide.

“As to social prejudice and financial loss, these are inherent inconveniences suffered by every accused and are not regarded as trial-related prejudice.”

Costs Order and Warning Against Delaying Tactics

In dismissing the appeal with costs, including those of two counsel, the SCA said that while an adverse costs order does not automatically follow in such matters, this was not a fixed rule.

The court noted that Mathebula should have been aware that his application did not raise trial-related prejudice and that he had failed to show exceptional circumstances justifying intervention.

“As the authorities make plain, frontal challenges that serve only to delay criminal trials should be discouraged, unless well-grounded,” the court said.

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