The long-running fraud case involving eBundu Lodge owner Sibusiso Tshabalala was heard before a panel of judges in the Supreme Court of Appeal sitting in Mpumalanga on Friday, July 31, as he appealed his 2021 fraud conviction.

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Tshabalala was convicted in the Nelspruit Regional Court in October 2021 of defrauding the lodge of about R160 000. However, he is asking the court to set aside the conviction, arguing that the trial proceedings were fatally compromised after the presiding magistrate, Deon van Rooyen, recused himself before sentencing.

Bribery allegations prompt recusal

The recusal followed allegations that Tshabalala’s former attorney, Khalipha Ngcangca, had offered Van Rooyen a R10 000 bribe. Van Rooyen subsequently stepped down from the matter before the sentence was imposed.

Representing Tshabalala, Adv Marius van Zyl argued that the central issue was whether the magistrate’s recusal and the resulting apprehension of bias rendered the entire trial, including the conviction, a nullity.

He submitted that once a judicial officer recuses themselves, they become functus officio and the proceedings cannot simply continue before another magistrate. He further argued that the apprehension of bias was not confined to the sentencing phase, but stemmed from incidents that allegedly occurred before the conviction, including a witness consultation and an undisclosed visit by the complainant to the magistrate’s office.

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Van Zyl also argued that the Nelspruit Regional Court had incorrectly relied on Section 275 of the Criminal Procedure Act, which permits another magistrate to impose sentence if the original magistrate is absent. He contended that recusal does not amount to the type of absence contemplated by the Act and therefore cannot validate proceedings that are allegedly tainted.

He further submitted that Tshabalala’s constitutional right to a fair trial before an impartial judicial officer had been infringed, rendering the conviction invalid.

State defends conviction validity

State Advocate Henry Khumalo maintained that Van Rooyen’s recusal was appropriate, as justice must not only be done but also be seen to be done. However, he argued that the apprehension of bias affected only the sentencing stage and did not invalidate the conviction already reached during the trial.

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That was also the finding of the Nelspruit Regional Court, which ruled that although the recusal was justified, the conviction remained valid and the matter should be referred to a different regional magistrate for sentencing.

After hearing arguments from both parties, the panel reserved judgment. The court indicated that its decision would be delivered within a week.