Judge in a legal battle to stop prosecution for theft of over R2 million while still an attorney

A judge in the Bloemfontein High Court is in a legal battle to avoid prosecution after he allegedly misappropriated over R2 million intended for a client. 

The case is rooted in Mpina Mathebula's previous work as an attorney practicing under the name Uys Mathebula Attorneys in Sasolburg.

According to court documents, from July 2012 to May 2018, Mathebula was allegedly involved in the misappropriation of funds after helping a boy who was involved in a car accident.

Mathebula's services were requested by Dimakatso Makhethe, an elderly woman who wanted compensation from the Road Accident Fund (RAF) for her grandson.

Following the claim, RAF paid out R2.2 million into Mathebula's law firm account in August 2013.

In addition to the amount, RAF made another payment of more than R900,000 after the high court ordered RAF to pay for the costs of the application.

In total, Mathebula's law firm received over R3.1 million. However, only R110,500 was paid to Makhethe's grandson.

Aggrieved by the amount, Makhethe laid a complaint and the State managed to recover over R1.2 million from Tswantso Melato who worked at Mathebula's law firm as a candidate attorney. He took over the business when Mathebula was appointed a judge. But he has since been struck off the roll of attorneys.

He is also co-accused with Mathebula in the criminal proceedings.

Based on calculations by the state, at least R1.3 million is still outstanding.

According to the charge sheet, Mathebula allegedly made various unlawful transfers from the law firm’s trust account into his business account. Stemming from the alleged transfers, Mathebula is facing charges of theft, alternatively fraud, and money laundering.

In his defence, Mathebula disputed the accuracy of the calculations and denied the charges against him.

He made numerous efforts to contest the charges, including making representations to the Director of Public Prosecutions; however, the request was declined. A subsequent request to the National Director of Public Prosecutions met the same fate. He then turned to the high court, which concluded that the relief sought was drastic and should only be granted sparingly and in compelling circumstances.

Unrelenting, he sought relief at the Supreme Court of Appeal (SCA) where he submitted that the decision to prosecute was based on a fundamental lack of appreciation for how attorney-and-client fees are computed. Consequently, the decision was arbitrary, irrational, and in violation of the principle of legality and the rule of law. Furthermore, he argued that his right to dignity has been impaired by being forced to face a prosecution that lacks the necessary factual basis to support a rational decision.

He argued that being charged and appearing in criminal court subjected him to embarrassment, ridicule, and insults from the public, ultimately destroying his reputation and standing. Furthermore, he noted that defending himself against these charges throughout the trial resulted in substantial legal costs.

Reviewing Mathebula's arguments, the SCA said he failed to prove a trial-related prejudice such as an unreasonable delay in the commencement and finalisation of his criminal trial.

"His 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," said the SCA.

It was held that none of the arguments presented constitute trial-related prejudice. Regarding the first point, this pertains to the merits of the State’s case, which only the trial court can determine. As for social prejudice and financial loss, these are considered inherent inconveniences suffered by every accused individual and are not regarded as trial-related prejudice.

"We agree with the high court that the appellant (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. The appeal must thus fail," said the SCA.

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