The Mpumalanga Division of the High Court has dismissed an appeal by eBundu Lodge owner Albert Sibusiso Tshabalala, ordering that his long-delayed criminal case be remitted to the Nelspruit Regional Court for sentencing.

The judgment, delivered on August 11, marks another chapter in a legal saga that began more than five years ago.

Stake purchase led to fraud charges

The situation unfolded in 2018 when Tshabalala and his wife, Ntombizodwa, bought a 66.7% stake in eBundu Lodge – situated between Mbombela and White River – from Willem and Enesta Janson for R32m.

ALSO READ: eBundu Lodge owner appeals fraud conviction

Willem approached the police after allegedly discovering invoices amounting to over R200 000 for services that had never been rendered, which he claimed showed that the money was paid into the couple’s personal accounts without his knowledge.

They were subsequently arrested on eight charges of corruption, forgery and money laundering.

The case originated in the Specialised Commercial Crimes Court in Mbombela, where Tshabalala’s trial commenced in March 2021. He was convicted of three fraud-related charges in October the same year after defrauding the lodge of about R160 000.

Ntombizodwa was acquitted of all charges.

Sentencing delayed after bribe disclosure

After being convicted, Tshabalala’s sentencing was postponed about 30 times for various reasons.

ALSO READ: Nelspruit Commercial Crimes Court postpones the case against Sibusiso Albert Tshabalala to next year

The trial then took a dramatic turn when the presiding magistrate, Deon van Rooyen, revealed on the record that he had been offered a R10 000 bribe intended to secure a non-custodial sentence for Tshabalala.

Van Rooyen subsequently recused himself.

Tshabalala’s legal team then sought to have the entire conviction set aside. They raised allegations of bias, citing incidents including an alleged private meeting between the magistrate and the complainant.

High court finds review irregular

A central issue in the appeal was the procedural path taken by the defence. Rather than following the standard Rule 53 review process for an accused person, the defence persuaded a new magistrate to submit the case for ‘special review’ under Section 304A of the Criminal Procedure Act.

However, the high court found that this referral was irregular. The court noted that the application for special review was based on ‘misrepresented facts’ regarding the timing of the alleged meeting between the trial magistrate and the complainant.

While the defence claimed the meeting occurred before the conviction to suggest bias, the record indicated it actually took place afterwards.

In the judgment, Acting Judge President Ratshibvumo, alongside Acting Judges Malangeni and Fourie, emphasised that high courts are generally ‘slow to intervene’ in unfinished criminal proceedings unless a ‘grave injustice’ would occur.

The court found that Tshabalala failed to demonstrate such injustice, noting that he still has the right to appeal his conviction through standard channels once he has been sentenced.

“The referral of a matter for special review was also irregular for lack of reasons, and for being based on misrepresentations,” the court stated in its conclusion.

The high court has confirmed the previous order that the conviction stands.

The matter has now been sent back to the regional court, where a different magistrate will conclude the sentencing proceedings.

Willem Janson said there was an ongoing civil claim against the Tshabalalas relating to the same matter.