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

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.

He was granted R50,000 bail.

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.

The defence opposed the application.

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.

NPA signals return to court

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.

That procedural point has become central.

The 342A question

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:

● The length of the delay;

● The reasons provided by the prosecution;

● Whether the accused contributed to the delay;

● Whether prejudice arises to either party; and

● The broader interests of justice.

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 suggests that such a formal inquiry did not take place before the strike-off order was made.

The absence of that inquiry does not invalidate the ruling, but it frames the procedural debate around how the delay was assessed.

Not an acquittal — but a pause

The legal effect of striking a matter off the roll is procedural rather than substantive. The case is removed from the active court roll, but may be reinstated once investigations are complete.

It does not constitute a finding on guilt or innocence.

For now, the matter remains open but inactive before the court, with the NPA signalling its intention to return.

Governance implications

The case also unfolds against the backdrop of scrutiny surrounding Mathibe’s roles at JDA and Joshco and ongoing political contestation around executive appointments within municipal entities.

Responding to Daily Maverick’s questions about Mathibe’s continued role, the City said the matter was being handled by law enforcement and, based on information from his representatives, related to his personal affairs.

“The City’s position is that this matter is being handled by the relevant law enforcement authorities and, based on information provided by Mr Mathibe’s representatives, relates to his personal affairs. The City will continue to respect the principle that a person is innocent until proven guilty.”

It added that any decision had to follow due process.

“The City must ensure that any action it takes is fair, based on clear evidence, and follows the proper process. As the matter has been struck off the roll and there has been no conviction or formal finding against Mr Mathibe, there is currently no basis for the City to take further action on his appointment.”

The City said it remained guided by governance principles.

“Our approach is guided by fairness, accountability and due process. The City does not respond to matters through public speculation, but through proper governance and legal channels. Where there have been confirmed findings of misconduct or criminal wrongdoing, the City has acted decisively.”

It also confirmed cooperation with authorities.

“In relation to Joshco, the entity has received formal communication about matters being considered by law enforcement agencies, including the Hawks and the National Prosecuting Authority. The entity is fully committed to cooperating with all lawful investigations.” DM