/ 18 July 2022

Delay in sentencing bogus Prasa engineer Daniel Mthimkhulu

Prasa Head Engineer Not Registered With Ecsa
Daniel Mthimkhulu during a media briefing on July 6, 2015 in Pretoria, South Africa. (Photo by Gallo Images/Thapelo Maphakela)

The lack of court transcripts have “unreasonably delayed” the sentencing of Daniel Mthimkhulu almost seven months after the former Passenger Rail Agency of South Africa (Prasa) head engineer was convicted of fraud. 

On Monday, it emerged in the Johannesburg specialised commercial crimes court, sitting in Palm Ridge, that the court records for January, the month in which Mthimkhulu was convicted on three fraud counts, have not been transcribed for the new magistrate presiding over the bogus engineer’s sentencing. 

Magistrate Benita Oswell convicted the fraudster on 31 January, before emigrating. Magistrate Phillip Venter replaced her as Mthimkhulu’s presiding officer. Oswell’s emigration necessitated the transcription of the court record, including the judgment, in order for Venter to begin sentencing proceedings.

Mthimkhulu was convicted for, among other things, submitting six fraudulent tertiary education qualifications to Prasa, including a fake master’s degree from the University of the Witwatersrand; misrepresenting that he had a doctorate and demanding that he be referred to as “Dr Mthimkhulu”, despite a matric certificate being his highest qualification. 

He also forged an offer letter of employment from German engineering firm DB Schenker in June 2010 to illegally get his Prasa salary hiked from R1.6-million to R2.8-million. His pay was only R64 530 when he began as an engineering technician in July 2000.  

On Monday, the prosecutor, advocate Sithembiso Bhengu, called Lynton Jacobs, the Palm Ridge magistrate’s court’s criminal court section supervisor, to explain the delays in finalising the transcripts for Venter to begin sentencing. 

Jacobs said the service provider used by the court had problems with the audibility of one of the discs submitted for transcription, adding that the company had asked on Friday, 15 July, that the record be downloaded onto a USB memory stick for the files to be read. 

Jacobs said his office had received a portion of the transcribed record, adding that he had not looked at the transcription to see which parts of the proceedings had been audible to the transcribers, but had given the transcribed portion to Bhengu. 

Asked when he expected the USB to be procured and the record transferred to it, Jacobs said he did not know because he had to wait for the justice department’s procurement division to buy it.  

This testimony drew the ire of advocate Francois Roets, Mthimkhulu’s legal representative, who emphasised that the “unreasonable delay” in starting the fraudster’s sentencing was prejudicial to his client. 

“There is no specific time limit [to getting the transcripts] – we must just postpone, postpone and postpone. Am I correct?” Roets asked Jacobs, to which the witness responded, “Yes.” 

Addressing the magistrate, Roets said the matter should be struck off the court roll until the transcriptions were finalised, in order not to further prejudice his client who had to pay legal fees each time he came to court for a postponement. 

“The difficulty we have is that there is no certainty on when the [transcription] documents … will be available. There is an unreasonable delay in the finalisation of [sentencing] proceedings,” Roets said.

Bhengu however rejected Roets’s proposal that the matter be removed from the roll, saying he had been trying for months to get the records clerk, who he named as “Charmaine”, to finalise the transcription. 

“And the responses that were given to me [were] that she could not find the record because Ms Oswell was sitting in different courts. I only involved Mr Jacobs when I was not receiving any joy from the relevant clerk,” Bhengu said. 

Venter, responding to both Bhengu and Roets, said there was no sufficient evidence to show that the state’s tardiness had caused the delays in sentencing Mthimkhulu, adding that removing the matter from the roll was not “the appropriate action”. 

However, Venter added: “Concluding this matter as soon as possible is in everybody’s best interests.” 

Venter ruled that Bhengu should provide Jacobs with the USB stick by no later than 5 August and that the transcription application to the service provider “must be marked as urgent”. 

Mthimkhulu, whose bail was extended, will return to court next month.