S v Masinga (59/2025) [2025] ZAGPJHC 890 (9 September 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: South Gauteng High Court, Johannesburg South Africa: South Gauteng High Court, Johannesburg You are here: SAFLII >> Databases >> South Africa: South Gauteng High Court, Johannesburg >> 2025 >> [2025] ZAGPJHC 890 | Noteup | LawCite sino index ## S v Masinga (59/2025) [2025] ZAGPJHC 890 (9 September 2025) S v Masinga (59/2025) [2025] ZAGPJHC 890 (9 September 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPJHC/Data/2025_890.html sino date 9 September 2025 IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, JOHANNESBURG REVIEW: 59/2025 (1) REPORTABLE: NO (2) OF INTEREST TO OTHER JUDGES: NO (3) REVISED: NO 09 /09/2025 In the matter between: THE STATE Applicant and MASINGA, THEMBA NELSON Respondent JUDGMENT ON REVIEW YACOOB J : 1. This matter was remitted for special review in terms of section 304(4) of the Criminal Procedure Act, 51 of 1977 (“the CPA”), by the District Court in Boksburg. 2. Mr Masinga was charged with housebreaking with intent to rob and robbery and appeared in the Vosloorus Regional Court. He and his co-accused were initially represented by the same legal representatives, employed by Legal Aid South Africa (“LASA”). However, upon a conflict arising, LASA instructed a private legal practitioner to represent Mr Masinga. 3. Mr Masinga was then assisted by a Mr Mathebula, on whose advice he pleaded guilty, and was convicted and sentenced to six years’ imprisonment. 4. However, it thereafter emerged that Mr Mathebula, at the time he initially appeared to assist Mr Masinga, had been a candidate attorney. During the later period of his involvement in the proceedings, he was no longer a candidate attorney, he had not been admitted as an attorney, and his right of appearance had expired. The person who had been instructed to appear for Mr Masinga by LASA was Mr Mathebula’s erstwhile principal, a Mr Mabule, and not Mr Mathebula. 5. It is clear that Mr Masinga was not represented by a legal practitioner as he is entitled to be. This is a clear breach of his rights to a fair trial encapsulated in section 35(3) of the Constitution of the Republic of South Africa, 1996, as well as his right to legal assistance in terms of section 73 of the CPA. 6. I am satisfied that the proceedings in which Mr Masinga was convicted and sentenced are vitiated by this irregularity and that they must be set aside and begin de novo . 7. I therefore order that: 7.1. The conviction and sentence of Mr Masinga on 23 January 2025 in case number VSH120/2023 are unlawful and set aside. 7.2. The matter is remitted to the Regional Court, Vosloorus for trial de novo . S. YACOOB JUDGE OF THE HIGH COURT GAUTENG DIVISION, JOHANNESBURG I agree. W. KARAM ACTING JUDGE OF THE HIGH COURT GAUTENG DIVISION, JOHANNESBURG sino noindex make_database footer start