Maseko v S (CC64/20) [2025] ZAGPPHC 1387 (12 December 2025)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: North Gauteng High Court, Pretoria South Africa: North Gauteng High Court, Pretoria You are here: SAFLII >> Databases >> South Africa: North Gauteng High Court, Pretoria >> 2025 >> [2025] ZAGPPHC 1387 | Noteup | LawCite sino index ## Maseko v S (CC64/20) [2025] ZAGPPHC 1387 (12 December 2025) Maseko v S (CC64/20) [2025] ZAGPPHC 1387 (12 December 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2025_1387.html sino date 12 December 2025 # REPUBLIC OF SOUTH AFRICA REPUBLIC OF SOUTH AFRICA # INTHEHIGHCOURTOFSOUTHAFRICA IN THE HIGH COURT OF SOUTH AFRICA # GAUTENG DIVISION, PRETORIA GAUTENG DIVISION, PRETORIA Case Number : CC64/20 (1) REPORTABLE; YES/NO (2) OF INTREST TO OTHER JUDGES: YES/NO (3) REVISED: YES/NO 12/12/2025 In the matter between : JOSIAS LUCAS MASEKO Applicant And THE STATE Respondent # JUDGMENT JUDGMENT Mosopa, J Introduction [1] This is an application for bail appl ic ation pending the finalisation of a Petition for Leave to Appeal to the Supreme Court of Appeal (SCA) . The application is opposed to by the State. [2] The applicant (who was standing trial as accused 4) was convicted on the charge of robbery with aggravating circumstances , contravention of section 22(2) of the Explosive Act 15 of 2003 , contravention of section 16(2)(a) of the Riotous Assembly Act 17 of 1956 , unlawful possession of firearm and unlawful possession of ammunition and sentenced to 30 years imprisonment by Barn J . [3] Leave to appeal was refused by the trial court and the application successfully petitioned the SCA for application for leave to appeal and the full court of th i s division on appeal reduced the sentence of the applicant to 25 years imprisonment. [4] The appl i cant was aggr i eved by the appeal outcome and further petit i oned the SCA, which petition was dismissed on the 07 May 2024 . An application was made in terms of section 17 (2)(f) of the Superior Court Act 10 of 2013 for the reconsideration by the President of the SCA and , if necessary , variation. [5] On the 08 August 2025 Makgoka JA after considering the Notice of Motion and other documents filed made the following order ; 5.1. Condonat i on as applied for is granted , 5.2. The decision of the court dated 07 May 2024 dismiss i ng the application for Special Leave to Appeal i s referred to the court for reconsideration and , if necessary , var i ation . 5.3. For this purpose the applicant is to file six copies of the i ni t ial application for leave to appeal and s ix copies of the app li cation in terms of Section 17(2)(f) of the Superior Court Act 1 O of 2013 , within one month of the date of this order and thereafter to comply with the rules of this court relating to the conduct of appeals by filling the record in terms of r ule 8 within 3 months of this order , and both parties are to comply with all the remaining ru les re lating to the prosecution of an appeal ; 5.4. If the applicant does not proceed with the application , the applicant is to pay the costs relating to the application for leave to appeal. [6] The applicant stated in his affidavit in support of the bail application that , 6.1. He is 51 years old , South African citizen residing at Dennilton . He has no travell i ng documents and no ties outside the borders of the Republic , 6.2. He is a businessman , a sole director of a company known as Ncamani 01 (Pty)Ltd which is a construction company . He is also an owner of three taxi minibuses reg i stered with Dennilton Taxi Association , 6.3. He is a father of four children with ages ranging from 26 to 6 years . He i s a primary supporter of his elderly mother , and his entire family depends on h i m financially and emotionally , 6.4. He has deep and permanent roots in South Africa and considers himself as not a flight risk , 6.5. He has no assets or family outside the Republic , 6.6. He has no previous convictions except for the current one and no pending criminal matters , 6.7. He is no danger to witnesses as they have already testified and as a result he cannot temper or interfere with evidence . He poses no danager to the public and no threat to the administration of justice and , 6.8. After his conv i ction h i s bai l was extended , and he has been on bail until his appeal process was finalised , and he has never defaulted on his bail condition . [7] Parties agreed that this bail application resorts under section 60 (11)(a) of Act 51 of1977 , which provides that , " [11] Notwithstanding any provision of this Act , where an accused i s charged w i th an offence - ( a ) referred to in Schedule 6 , the court shall order that the accused be detained in custody until he or she is dealt with in accordance with the law , unless the accused , having been given a reasonable opportunity to do so , adduces evidence which satisfies the court that exceptional circumstances exist which in the interests of justice permit his or her release . " [8] The above provision must be read together with section 35(1)(f) of the Constitution which provides that, " (35] (1) Everyone who is arrested for allegedly committing an offence has the right- (f) to be released from detention if the interests of justice permit, subject to reasonable conditions. " [9] The application contended that the following constitutes , exceptional circumstances 9.1. That the SCA granted an oral hearing , which is extraordinary and reflects a recognition of substantial prospects of success on appeal , 9.2. His sentence is reduced by five years a concession that the trial was not free from material misdirection , 9.3. His prior flawless compliance with bail conditions demonstrates that he can be trusted once again , 9.4. He is a businessman , a father and a son with pressing responsibilities to dependents who are being gravely prejudiced by his incarceration , 9.5. The appeal may take considerable time , and his appeal may eventually succeed . It would be unjust to detain him for further when there is a substantial risk that he will eventually be acquitted or that his sentence will be further reduced ; and , 9.6. That he was not at the scene of crime . He was allegedly linked to the crime by the cell phone records but he challenged the veracity of the said cell phone records . The section 204 state witness testified that he does not know him and has not had any prior dealings with him . The states has a weak case against him . [10]  The right to innocence of the applicants is no longer available to him in due regard of the fact that he has been convicted and sentenced . The applicant bears the onus to show that he has a reasonable prospect of success on appeal even though this court is not seized with determining the merits of the appeal matter. The applicant must further show that the interest of justice permits him to be released on bail in addition to proving existence of exceptional circumstances in his case as the conviction resorts under Schedule 6 . [11] However , it is also important to interrogate procedural aspect involved in the matter. On the 8 August 2025 the applicant was ordered to comply with the rules of court relating to conduct of appeals by filing the records in terms of rule 8 within three months of the order and six copies of the initial application for leave to appeal. [12] In compliance with the order of 8 August 2025 , the applicant was supposed to have lodged with the registrar of the SCA six copies of the record of proceedings in terms of rule 8 on the 8 November 2025 . The respondent enquired with the registrar of the SCA on the 17 November 2025 , if the applicant had complied with the order of the 8 August 2025 by the way of an email and was informed that there was no such compliance . [13] When the matter was heard on the 25 November 2025 , the applicant had not yet complied with the order of the 8 August 2025 . [14] Rule 8 (2) provides for the extension of the time limit for lodging of the record with the reg i strar of SCA and states , ' [2] The time limit for lodging of the record may be extended - (a) by written agreement of all the parties to the appeal ; or (b) by the registrar upon request with notice to all parties to the appeal , provided that the registrar shall not be entitled to extend the period for more than two months ". [15] It i s the duty of an attorney charged with prosecuting an appeal on behalf of client to see that a proper record of appeal is placed before the court and in order to discharge this duty, the attorney must peruse the record and make sure that it is a complete and in compliance with the rule.(See Federate Employers Fire & General Insurance Co Ltd Mckenzie 1969 (3) SA 360 (A)) [16] The provisions of rule 8 are peremptory and not directory. Failure to comply with such is fatal in the sense that it is tantamount to the applicant failure to prosecute the appeal. However , the applicant is given a second chance to extent such period in terms of Rule 8(2) and the applicant failed to make good use of such provision. During argument the applicant did not indicate his intention of extending the time limit , as he has two months from the date of lapse of three months to , do so, and during argument the two months extens i on period had not lapsed. The petition as it stands it has lapsed due to failure by the applicant to prosecute it. [17] Furthermore , the applicant misrepresented himself from the affidavit in support of bail application by alleging that he has no previous convictions . The Act has criminalised such conduct and applicant can be liable for a period of imprisonment. [18] It will be of no use to grant the applicant bail because there is no petition for leave to appeal pending for reasons supplied supra . This exercise is made just to postpone imprisonment and needs to fail. ORDER [19] In the result , the following order is made , 1 . Application for bail pending the finalisation of the petition for reconsideration alternatively variation by the President of the Supreme Court of Appeal is hereby refused . # # M.J. MOSOPA M.J. MOSOPA # JUDGE OF THE HIGH COURT JUDGE OF THE HIGH COURT PRETORIA For the Applicant                   Attorney Lazarus Instructed by Lazarus Joshua Attorneys For the Respondent Adv C Harmzen and Adv Cornelia Harmzen Instructed by Director of Public Prosecutions, Pretoria Date of Hearing : 27 November 2025 Date of Judgment:                 12 December 2025 sino noindex make_database footer start