The Supreme Court of Appeal (SCA) has dismissed an application by the Director of Public Prosecutions (DPP) in Gauteng for leave to appeal a decision allowing two accused in the VBS Mutual Bank criminal case to have their trials separated from those of their co-accused.
The judgment, handed down on Monday, concerns Kabelo John Matsepe and Mamphe Daniël Msiza, who are among 13 accused in the criminal prosecution arising from the collapse of VBS Mutual Bank.
Matsepe and Msiza were indicted alongside their co-accused on 179 charges, including offences under the Prevention of Organised Crime Act, theft, fraud and corruption.
Matsepe faces 39 counts, while Msiza faces eight counts.
The matter is being heard in the Gauteng High Court in Pretoria, where the accused had initially appeared together in the prosecution relating to VBS.
On 22 July 2024, Matsepe and Msiza brought an application seeking, among other relief, the separation of their trials from those of their co-accused in terms of section 157 of the Criminal Procedure Act.
Acting Judge Mabuse heard the application on 14 August 2024 and subsequently dismissed their request for a temporary stay of prosecution but granted the application to separate their trials.
The DPP subsequently approached the High Court seeking the reservation of questions of law in terms of section 319(1) of the Criminal Procedure Act.
That application was argued before the High Court on 11 November 2024 and was later dismissed.
The DPP then sought leave to appeal the refusal to reserve the questions of law.
The SCA found that the questions the DPP sought to have reserved lacked the clarity required for a reservation of questions of law under section 319.
The appeal court also found that, to the extent that the questions could be understood, some appeared to lack a legal foundation.
“There being no prospects of success in respect of these two questions, leave to appeal must be refused,” the judgment states.
The SCA further rejected the argument that the High Court had improperly interfered with the State’s decision to prosecute the accused jointly.
The court noted that prosecutorial discretion is governed by section 179(2) of the Constitution and considered whether the High Court had unlawfully interfered with that discretion when it ordered the separation of the trials.
The SCA ultimately concluded that the DPP had failed to meet the jurisdictional requirements necessary for the appeal to be considered under section 319 of the Criminal Procedure Act.
It also found that there were no reasonable prospects of success even if the appeal were to be entertained.
“There is no merit in any of the questions of law sought to be reserved by the DPP,” the court found.
The SCA consequently dismissed the application for leave to appeal.
The judgment was delivered electronically on Monday and is deemed to have been handed down at 11am on 5 October 2026.
