High court judge allegedly misappropriated R1.32m prior to becoming a judge and has twice failed to obtain a permanent stay of criminal prosecution related to funds received from the RAF.
A high court judge has now failed twice to obtain a permanent stay of criminal proceedings against him related to the alleged misappropriation of R1.32 million from the Road Accident Fund (RAF) by his law firm prior to him becoming a judge.
The Supreme Court of Appeal (SCA) on Friday dismissed with costs an appeal by Bloemfontein High Court Judge Mpina Mathebula against a Free State High Court judgment.
Judge Robert Henney – with SCA judges Tati Makgoka, Fikile Mokgohloa, Selewe Mothle and Daisy Molefe concurring – said they agree with the Free State High Court that Mathebula had “made out neither a case of trial-related prejudice, nor proved, on a balance of probability, extraordinary circumstances that warrant a permanent stay of prosecution”.
In reference to costs, Henney said Mathebula would have been aware that there was no trial-related prejudice in the grounds he relied upon in support of his application and that he established no exceptional circumstances for the court’s 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.
“For these reasons, we are entitled to deviate from the default position and order that costs should follow the result.”
ALSO READ: Scopa RAF inquiry to probe alleged corruption between judges and lawyers
Criminal charges
The criminal charges Mathebula faces arise from his practice as an attorney, and have nothing to do with the performance of his duties and service as a judge.
Tswantso Melato, the second respondent in the application, was Mathebula’s candidate attorney at the law firm Uys Mathebula Attorneys in Sasolburg in the Free State.
Melato took over the law firm when he was admitted as an attorney and Mathebula appointed a judge, but has since been struck off the roll of attorneys and is Mathebula’s co-accused in the criminal proceedings.
The charges against Mathebula arise from an alleged misappropriation of funds received by his law firm from the RAF between July 2012 and May 2018.
It is alleged that on 3 August 2010 Mrs Dimakatso Makhethe instructed Mathebula’s law firm to institute an action against the RAF on behalf of her minor grandson, who was injured in a vehicle accident.
The claim was settled with the RAF, and the high court on 20 August 2013 awarded the child R2.2 million plus costs to be paid by the RAF.
The court ordered that the R2.2 million be paid directly into Uys Mathebula Attorneys’ bank account and be kept in the law firm’s trust account in an interest-bearing account for the sole benefit of the child, until paid over to the trust the firm was instructed to establish in favour of the child.
The state summoned Mathebula to appear in the Specialised Commercial Crimes Court in Kroonstad on 9 March 2023 to answer three criminal charges: theft, alternatively fraud; money laundering; and contempt of court.
It alleges that Mathebula failed to comply with part of the high court order by not depositing and keeping the R2.2 million in a trust investment account for the child’s sole benefit, and by failing to establish a trust for the child.
This alleged failure constitutes the contempt of court charge.
ALSO READ: Scopa launches inquiry into RAF misconduct claims
Total of R3.1m paid to the law firm
The state further alleges that in addition to the R2.2 million awarded by the high court, the RAF made two interim settlement payments to Mathebula’s law firm of R500 000 and R442 089.70, the last of which was for party-and-party costs in the high court.
The total amount paid to Mathebula’s law firm, including the award by the high court, is alleged to be R3 142 089.70, out of which:
- R111 500 was paid to Mrs Makhethe by the firm, and
- R1 258 110.13 was recovered from Melato by way of settlement of an action instituted by Mrs Makhethe against him.
A balance of R1 329 092.44 was unaccounted for, according to the calculations made by the state’s expert witness.
It is alleged that Mathebula made various unlawful transfers from the law firm’s trust account into his business account, with these transfers allegedly made from the money held in trust to the child’s credit.
These alleged transfers constitute the charges of theft, alternatively fraud and money laundering.
Mathebula disputes the accuracy of the calculations and denies the charges against him.
ALSO READ: Scopa RAF inquiry to probe alleged corruption between judges and lawyers
Decision to prosecute ‘arbitrary and irrational’
The Director of Public Prosecutions in the Free State and the National Director of Public Prosecutions both declined requests from Mathebula for the withdrawal of the criminal charges against him.
This resulted in Mathebula turning to the high court with an application for a permanent stay of prosecution.
It concluded that the relief sought by Mathebula was drastic and should only be granted sparingly and in compelling circumstances.
SCA Judge Henney said the high court also observed that the permanent stay of prosecution constitutes a final interdict, thus requiring the appellant to establish that he has no alternative remedy.
He said the high court found Mathebula had failed to prove this because he can assert his defence at his trial.
Mathebula claimed the decision to prosecute him was based on a lack of appreciation for how attorney-and-client fees are computed and the decision was arbitrary, irrational and offended the principle of legality and the rule of law.
ALSO READ: Contingency fees appeal judgment rocks attorneys
‘Right to dignity impaired’
In addition, Mathebula argued his right to dignity was impaired merely by having to face a prosecution in which there were no facts to support a rational decision to authorise it in the first place.
On this basis, Mathebula sought to impugn the state’s decision to charge him as being inconsistent with the Constitution and therefore sought a declaration to that effect.
Henney said a court seized with such an application has to balance a complainant’s right to access justice, and an accused’s right to a speedy trial.
He said whether a court would grant a permanent stay of prosecution will therefore depend on the circumstances of each case, which would include instances where an infringement of the right to a fair trial, as provided for in the Constitution, results in prejudice.
“In the present case, the appellant [Mathebula] does not raise a trial-related prejudice such as an unreasonable delay in the commencement and finalisation of his criminal trial.
“His [Mathebula’s] complaint is essentially two-fold.
“First, that the charges have no proper legal foundation.
“Second, and flowing from the first, that he is suffering undue social prejudice and financial loss because of the prosecution.”
Henney noted: “None of these constitutes trial-related prejudice.
“As to the first, it goes to the merits of the State’s case. Needless to say, only the trial court can determine that.
“As to social prejudice and financial loss, these are inherent inconveniences suffered by every accused and are not regarded as trial-related prejudice.”
This article was republished from Moneyweb. Read the original here.
