The next battle over the VBS prosecution of Danny Msiza and Kabelo Matsepe is heading to National Director of Public Prosecutions Andy Mothibi after a Supreme Court of Appeal ruling forced the NPA to reconsider how it will pursue their charges.
Sunday World understands that a request for Mothibi to review the prosecution is on the cards following the state’s next decision on a fresh indictment.
The ruling on Monday rejected the NPA’s attempt to overturn an order separating the two men from their VBS co-accused.
The NPA faces a choice: it can draft a separate indictment or ask the Pretoria High Court to reunite the accused.
The minority judgment spells out what the first route means.
Acting appeal judge LW Seriti said the indictment could not simply continue unchanged after separation.
“Under the order of separation, the indictment would need to be reviewed to exclude the respondents,” he wrote.
It would also have to exclude “a number of charges that were only applicable to them”.
“The matter can no longer continue in terms of the indictment in respect of which the respondents were arraigned,” he said.
Four judges rejected Seriti’s bid to overturn the separation order. But they acknowledged that prosecutors could ask the trial court to restore a joint trial.
The majority said “nothing prevents the DPP from applying to consolidate” the cases again. The separation order, therefore, stands unless the high court changes it. A separate indictment will bring renewed scrutiny of supporting evidence.
Matsepe originally faced 39 counts and Msiza eight, including allegations involving a VBS racketeering enterprise.
The questions are not new.
In October 2023, Sunday World reported that Matsepe had demanded details about his alleged role in the enterprise.
He asked when and where he joined it, whom he allegedly conspired with and which municipal officials he influenced.
The answers exposed gaps in the details prosecutors could supply at that stage.
“It is at present unknown to the state precisely when and where accused 10 joined and/or associated himself with the ‘enterprise’,” prosecutor Hein van der Merwe replied.
The NPA maintained that circumstantial evidence would establish his alleged involvement.
The courts subsequently rejected the accused’s attempts to compel further particulars.
But any revised indictment will again draw attention to the state’s account of the two men’s alleged roles.
It will give their legal teams a fresh document against which to test the prosecution.
The NPA’s immediate decision is whether to rewrite the indictment or return to court seeking one trial.
- The Supreme Court of Appeal rejected the NPA’s attempt to overturn an order separating Danny Msiza and Kabelo Matsepe from their VBS co-accused.
- The NPA must either draft a separate indictment excluding Msiza and Matsepe or ask the Pretoria High Court to reunite the accused.
- A separate indictment will require excluding charges only applicable to Msiza and Matsepe and revising the original indictment.
- Matsepe originally faced 39 counts, and Msiza faced 8, including racketeering allegations related to the VBS enterprise.
- The NPA's next decision on a fresh indictment will lead to a review request by National Director of Public Prosecutions Andy Mothibi.
