- The Supreme Court of Appeal has ruled that allegations involving a child’s Road Accident Fund compensation must be examined at trial, even though the accused is now a sitting judge.
- The case concerns whether court-ordered trust protections for a vulnerable child were honoured while the accused was in private legal practice.
- The court held that disputes over calculations and denials of wrongdoing cannot justify stopping a prosecution before evidence is heard.
Long before joining the High Court in Bloemfontein, Judge Mpina Abednego Mathebula was a practising attorney in Sasolburg.
During this period, he was entrusted with money meant to improve the future of a child injured in a road accident. At the centre of the current criminal case is what happened to the compensation awarded to this child, a matter the Supreme Court of Appeal (SCA) says must be heard in full.
As the court stressed, “this matter has nothing to do with the appellant’s conduct as a judge,” but arises from “events that occurred when he was practising as an attorney.” Judge Mathebula acted as a lawyer for an elderly woman seeking justice and security for her grandson.
In August 2010, Dimakatso Selina Makhethe, described in court papers as an elderly woman, approached Uys Mathebula Attorneys after her minor grandson suffered injuries in a motor vehicle accident. Like thousands of families across the country, she turned to the Road Accident Fund (RAF), hoping compensation would cover medical care and secure the child’s future.
When the claim was eventually settled, the High Court intervened to ensure the money would be protected. In August 2013, the court made the settlement an order, awarding R2.2 million in damages and setting out clear safeguards to prevent misuse.
The money had to be paid into the firm’s trust account, invested in an interest-bearing account for the sole benefit of the child, and a trust had to be established under the Trust Property Control Act. As the SCA later observed, “the purpose of the order was plain,” namely, “to ensure that the award was preserved and administered solely for the benefit of the minor child.” The funds were not for general use, not for business expenses, and not to be accessed outside tightly controlled legal boundaries.
What the State alleges went wrong
Prosecutors allege that these safeguards were not followed. The State says that, in addition to the R2.2 million award, the RAF paid further amounts to the firm, including interim payments and taxed legal costs. When all payments are included, the total allegedly received by the firm exceeded R3.1 million.
From that amount, prosecutors say only a small portion was paid directly to the complainant, while another amount was later recovered from Judge Mathebula’s former candidate attorney after civil litigation. Even after those recoveries, the charge sheet alleges that more than R1.3 million remains unaccounted for.
The prosecution’s case is that money held in trust for the child was unlawfully transferred into the firm’s business account, breaching both trust law and a direct court order. These alleged transfers form the basis of charges of theft, alternatively fraud, money laundering under the Prevention of Organised Crime Act, and contempt of court. As the SCA put it, “these allegations lie at the heart of the criminal charges and cannot be wished away by characterising them as accounting disputes.”
Judge Mathebula disputes this version entirely. He denies any wrongdoing and challenges the State’s calculations, saying the figures do not properly reflect legal fees and permissible deductions.
Why the SCA refused to stop the case
Faced with these competing versions, Judge Mathebula asked the courts to permanently halt the prosecution before trial. He argued that the case was built on flawed financial assumptions and that being forced to stand trial was damaging his dignity, reputation, and finances.
The SCA rejected that approach. Acting Deputy President Tati Makgoka stressed that “a permanent stay of prosecution is a drastic remedy” which is granted “only in exceptional circumstances.” The court found that Judge Mathebula had not alleged trial-related prejudice, such as unreasonable delay or an inability to receive a fair hearing.
Instead, the judges noted that his complaints related to the personal consequences of prosecution. “Embarrassment, social stigma, financial strain, and reputational harm,” the court said, “are unfortunate but unavoidable consequences of being charged with a criminal offence.”
The court stressed that when allegations concern trust money held for a vulnerable beneficiary, particularly a child, they cannot be resolved through applications and affidavits alone. Disputes over accounting methods, compliance with court orders, and the movement of funds are, in the SCA’s words, “precisely the kinds of issues that must be determined at trial.”
“The trial court is the appropriate forum,” the SCA emphasised, “to determine whether the alleged misappropriation occurred and whether criminal liability follows.”
Trust money and public confidence
The SCA noted, “Funds held in trust are subject to strict legal controls,” adding that compliance with court orders designed to protect minors “is fundamental to the administration of justice and public confidence in the legal profession.”
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