Struck from the roll: What the Mathibe case reveals about due process

The striking of the fraud case against Themba Mathibe raises questions about court procedures and the implications for his roles in municipal entities amid ongoing investigations.

The decision by the Alexandra Magistrates’ Court to strike off the roll the fraud case against Johannesburg Development Agency (JDA) chief executive officer Themba Mathibe has placed courtroom procedure — rather than the underlying allegations — at the centre of an unfolding controversy.

Mathibe, the acting chief executive officer at the Johannesburg Social Housing Company (Joshco), was arrested in January after the SAPS’s Special Task Force found R321,000 in cash following a search-and-seizure operation at his residence.

The operation was part of an ongoing corruption investigation, and the State alleges that Mathibe failed to provide a satisfactory explanation for having the cash.

Five months later, when the case returned to court on 2 June, prosecutors informed the magistrate that investigations were not complete. They requested additional time to finalise outstanding processes linked to the seized evidence.

But the court then declined to grant further time and struck the matter off the roll, ruling there was no basis to keep the case active while investigations remained incomplete.

In a statement issued yesterday (2 June), NPA communications officer Magaboke Mohlatlole confirmed that the prosecuting authority intended to re-enrol the matter once investigations were finalised.

“The National Prosecuting Authority is engaging with SAPS to expedite outstanding investigations with a view to re-enrol the case as soon as it is reasonably possible,” Mohlatlole said.

“The striking of a matter off the roll does not constitute an acquittal and does not preclude the State from re-enrolling the matter once investigations have been finalised and a decision to prosecute has been taken.”

However, the NPA also noted “with concern” that no formal inquiry was conducted under section 342A of the Criminal Procedure Act before the matter was removed from the roll.

Section 342A governs how courts must deal with delays in criminal proceedings. When a delay is alleged or apparent, the court is required to formally assess whether it is unreasonable, who is responsible for it, and what remedy is appropriate.

In practical terms, a 342A inquiry requires the magistrate to interrogate:

Only after weighing those factors may the court determine an appropriate response — which could include granting further time, issuing a cost order or striking the matter off the roll.

The NPA’s statement sugg