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2025
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[2025] ZAGPJHC 890
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S v Masinga (59/2025) [2025] ZAGPJHC 890 (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