According to Advocate Moipone Noko, the provincial Director of Public Prosecutions, it is not clear whether or not Mdunge has launched an appeal to the Supreme Court of Appeal.
But law experts insist that he cannot be at home without the authority of the law, saying if that was the case, then there is “a major problem”.
Noko said Mdunge’s matter was out of their hands after the Pietermaritzburg High Court dismissed his appeal in February.
“He was due to start his five-year jail sentence as soon as possible after the high court appeal was dismissed. It is the responsibility of the police and correctional services to make sure he reported to jail.
“The normal procedure is that if a convicted person does not report to jail within the 48-hour period as specified by the court, then it is up to the police to issue a warrant of arrest,” said Noko.
Mdunge was sentenced to five years’ imprisonment by the Durban Regional Court in May 2015 on two counts of fraud and one count of forgery.
The court found that he had presented a fake matric certificate that secured him a promotion in the police services and entry to the University of South Africa (Unisa) to continue his studies.
Although Thulani Mdluli, the Correctional Services spokesperson, was yesterday not available to confirm if Mdunge was in prison, the Daily News is aware that Mdunge is not in jail - more than five months after his appeal was dismissed.
Noko said as far as she knew, Mdunge had not applied for leave to appeal against the high court’s decision.
“As far as I am aware Mdunge should be in jail serving his five-year sentence. The 21 days in which he had to get leave to appeal to the Supreme Court has long expired.
“The normal procedure is that a person would not go to jail if he has launched an appeal and, in this case, he has not, as far as I am aware,” said Noko. She said if Mdunge had lodged an appeal she would know about it, but she would have to double-check.
The Daily News has made several attempts to get a comment from Mdunge and his attorney, Yusuf Omar.
When Mdunge was contacted, he referred the Daily News to Omar.
At the time of publication, Omar had not responded.
Carl van der Merwe, criminal attorney, said: “If he (Mdunge) is at home and did not present himself at the jail within a certain number of hours after losing the appeal, then it could be that he is appealing the ruling and taken the Supreme Court route. I do not think that he can be out there without any pending appeal application.”
He said the Supreme Court application could take six months and longer.
He said it was not possible that he could be outside jail without the law having anything to do with it.
University of KwaZulu-Natal law professor Karthy Govender said: “After the dismissal of the high court application, if he was granted the leave to appeal against the matter to the higher court, then the matter would still be with the Supreme Court.
“If not then there is a major problem.”