ZIMBABWEAN SECURED SA GOVT JOB USING FRAUDULENT DOCUMENTS SINCE 1995
Co-accused lose Supreme Court appeal
By Fanuel Viriri
A Zimbabwean, Kedibone Masange (56), has been living illegally in South Africa since 1995 and secured a post as Mpumalanga Human Settlements Head of Department among other posts. Masange was arrested on 1 September 2020.
However, Masange’s co-accused and former Acting Director of Public Prosecutions for Mpumalanga, Matric Luphondo, has had his bid to halt prosecution dismissed by the Supreme Court of Appeal (SCA) of South Africa. Luphondo argued that prosecutors lacked authority to charge him.
Luphondo is facing seven counts of corruption and three counts of defeating the ends of justice in the Gauteng High Court, Pretoria. The charges stem from allegations that he conspired with Masange, former Head of Department in Mpumalanga, and a now-deceased police officer to bribe the prosecutor handling Masange’s fraud and illegal immigration case.
According to the State’s indictment, Luphondo met the prosecutor twice in March 2023 and allegedly offered a bottle of 18-year-old Glenfiddich whisky worth R1,550 and/or R5,000 in cash to help Masange avoid prosecution. The matter came to light during an undercover “trap” operation conducted under s 252A of the Criminal Procedure Act.
At the start of his trial in May 2023, Luphondo pleaded not guilty. During a trial-within-a-trial on the admissibility of evidence, he filed a special plea arguing that the prosecutors had no “title to prosecute” him. He claimed the prosecution was not properly authorised under the National Prosecuting Authority’s Prosecution Policy Directives, which require written sign-off from the National Director or a DPP to prosecute categories of people including prosecutors.
The Gauteng High Court dismissed the plea in June 2023, ruling that while the s 75 letter used to transfer the case to the High Court was not formal authorisation, DPP Gauteng Mr Mzinyathi’s knowledge and instruction amounted to substantial compliance. The court refused to hear Luphondo’s application for leave to appeal, saying the matter should wait until after trial.
Two judges of the SCA later refused leave to appeal. Luphondo then petitioned the SCA President for reconsideration under s 17(2)(f) of the Superior Courts Act.
A five-judge SCA bench dismissed the application. The court clarified that under current precedent, a three-judge panel cannot overrule a five-judge panel, reaffirming that the referral court decides if “exceptional circumstances” exist for reconsideration.
The bench found no such circumstances. While the High Court had erred in saying Luphondo did not challenge the prosecutors’ authority, the SCA said the error did not create a risk of grave injustice. DPP Mzinyathi had testified that he authorised the prosecution and instructed that the s 75 letter be issued based on a briefing. The court said this was a bona fide process error, not misconduct that would justify stopping the trial.
“This conduct falls into the second category and therefore does not constitute a ground for halting the applicant’s criminal proceedings,” the judgment stated.
The court said Luphondo could raise the issue again on appeal after trial if needed.
The trial remains adjourned pending the outcome. Each party will pay its own costs
The judgment was handed down by Makgoka JA, with Kathree-Setiloane, Koen, Coppin JJA and Dawood AJA concurring.
Meanwhile, Masange is also set to face trial for corruption and for being an illegal migrant in South Africa since 1995. Masange is reported to be Zimbabwean but secured a job as Human Settlements HOD among other several jobs. He is alleged to have used fraudulent documents to secure the position.
Masange has been involved in high-profile litigation since his arrest. However, during his suspension he was paid more than R1.3 million in salaries before payments were stopped.
Masange is being charged with fraud in contravention of the Immigration Act after he allegedly misrepresented himself three times before the Department of Home Affairs.
Since 1995, he applied for documents and stated that he was born in three different places – Johannesburg in Gauteng, Pietermaritzburg in KwaZulu-Natal, and Brits in North West. He was issue three IDs on different dates. Masange applied for two IDs as a South African and a third as a Zimbabwean granted exemption to be in the country.