The Free State High Court has dismissed an application by former head of the provincial Department of Human Settlements, Nthimotse Mokhesi, seeking an order that Legal Aid South Africa must provide him with state-funded legal representation in the long-running asbestos removal corruption trial, TimesLIVE reported.
Judge: applicant failed to prove indigence
The court emphasised Mokhesi’s failure to ask the high court for permission to access assets that are subject to a preservation order under the Prevention of Organised Crime Act (POCA). It concluded he had not proved he was unable to afford his own legal fees and so was not eligible for representation at state expense.
Mokhesi is one of 18 accused in the case linked to allegedly irregular asbestos removal contracts. He faces charges including fraud, corruption and money laundering and is accused of receiving a gratification of R5 million after contracts worth about R230 million were awarded to contractors, work which the state alleges was never completed.
Though the accused pleaded to the charges more than 18 months ago, the criminal trial on its merits has not yet started. Mokhesi told Legal Aid South Africa he could not afford ongoing private legal representation and that in the past six years he had incurred legal fees totalling R8.2 million, the court record shows. He produced a recent statement of account from his attorney for about R2.8 million, which he said was required to secure legal services for the next 10 weeks of trial proceedings.
Legal aid process and the preservation order
Legal Aid South Africa’s provincial office in Bloemfontein refused his application after he failed a means test. Mokhesi’s internal appeal to the provincial executive was referred automatically to the national office and dismissed by the constitutional case management committee, according to the reported judgment.
A complicating factor is that Mokhesi’s reported assets — including two immovable properties, four vehicles, bank accounts and pension benefits — were placed under a provisional preservation order in terms of POCA in September. The court said Mokhesi did not approach the high court for permission to access those assets, an avenue available to an applicant who alleges genuine inability to pay for counsel because funds are frozen by a preservation order.
- Accused: Nthimotse Mokhesi
- Allegation of gratification: R5 million
- Contracts at centre of case: About R230 million
- Legal fees claimed to date: R8.2 million
- New statement of account: R2.8 million
- Assets under preservation order: Properties, vehicles, bank accounts, pension
What the ruling means for the trial
The court’s decision leaves Mokhesi responsible for securing private legal representation if he wishes to proceed without state assistance. It also reinforces a procedural point that applicants who have funds effectively frozen under POCA should seek the appropriate court relief to make those funds available for legal costs.
The asbestos matter remains one of the more prominent corruption-related prosecutions in the province. The pace of the criminal process has frustrated observers: despite pleas entered more than 18 months ago, evidence-in-chief and the hearing on the merits were still pending at the time of the Legal Aid judgment.
| Item | Amount |
|---|---|
| Alleged gratification to Mokhesi | R5 million |
| Value of disputed contracts | About R230 million |
| Legal fees incurred (six years) | R8.2 million |
| Statement of account for next 10 weeks | R2.8 million |
Legal practitioners familiar with POCA and means-testing for Legal Aid say two clear options are available to an accused whose assets are preserved: either apply to the high court for an order permitting access to specified funds for legal costs, or show the legal aid body that available resources fall within its means test. The judgment indicates the court expected Mokhesi to have pursued the first route if he genuinely lacked liquid funds because of the preservation order.
The National Prosecuting Authority has previously described the asbestos matter as complex and involving multiple accused and counts. The refusal of state-funded representation to Mokhesi does not affect the prosecution’s responsibility to prove the charges beyond reasonable doubt; it does however place practical pressure on an accused to secure and pay for private counsel or proceed unrepresented.
The judgment is drawn from reporting by TimesLIVE and the court record made available in the matter. The case continues to be of interest to Free State residents who have watched the allegations of municipal and provincial procurement irregularities mount into prolonged criminal proceedings.
