IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case number: CC56/2024
(1) REPORTABLE : YEs Col C")
(2) OF INTEREST TO 0~ JUDGES : YES /®
(3) REVISED : YES
In the matter between:
JOHAN MARAIS APPLICANT
V
THE STATE RESPONDENT
JUDGMENT
MOSOPA J
(1) This is an application for leave to appeal against a sentence of 15 years
imprisonment imposed on the applicant on the 10 July 2025. This sentence is
a sequel to the applicant convicted on the strength of his guilty plea.
(2) The applicant was legally represented throughout his trial matter by Ms
Simpson from the Legal Aid, South Africa. The respondent is represented by
Advocates Kabini, Davhana and Mogotsi all from the Director of Public
Prosecutions, Pretoria.
(3) The applicant was employed in the then apartheid South Africa Police when he
murdered the deceased together with his colleagues on the 24 August 1987.
The deceased was a student activist who was opposed to apartheid system
when he was murdered.
APPLICABLE LEGAL PRINCIPLE
(4) Section 316 of Act 51 of 1977 regulates application for leave to appeal relating
to applicants convicted and sentenced by a High Court. The following provision
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is made by section 316(1)(a) of Act 51 of 1977,
"Subject to section 84 of the Child Justice Act, 2008 any accused
convicted of any offence by a High Court may apply to that court for leave
to appeal against such conviction or against any resultant sentence or
order."
(5) Section 316(1 )(a)(i) makes provision that such application must be made within
14 days passing the sentence. However , the applicant is afforded an
opportunity to make an application after the lapse of 14 days for the extension
of such a period, but such applicant must show good cause for condonation to
be granted. In casu, the applicant filed his application for condonation which
was not opposed by the respondent and that is despite the fact that the
respondent is of the view that such application is meritless. As a consequence,
application for condonation is hereby granted.
(6) Also governing applications for leave to appeal is section 17 of the Superior
Courts Act 10 of 2013, which makes the following provision;
"(1) Leave to appeal may only be given where the judge or judges
concerned are of the opinion that-
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(a) (i) the appeal would have a reasonable prospect of success; or
(ii) there is some other compelling reason why the appeal should be
heard, including conflicting judgments on the matter under
consideration;
(b) the decision sought on appeal does not fall within the ambit of section
16(2)(a); and
(c) where the decision sought to be appealed does not dispose of all the
issues in the case, the appeal would lead to a just and prompt resolution
of the real issues between the parties."
(7) In Cook v Morrison and Another 2019 (5) SA 51 (SCA) at par 8, the following
was stated;
'(8) The existence of reasonable prospects of success is a necessary
but insufficient precondition for the granting of special leave. Something
more, by way of special circumstances, is needed. These may include
that the appeal raises a substantial point of law; or that the prospects of
success are so strong that a refusal of leave would result in a manifest
denial of justice; or that the matter is of very great importance to the
parties or to the public. This is not a closed list."
(8) In S v Smith 2012 (1) SACR 567 (SCA) at para 7, the following stated,
"(7) What the test of reasonable prospects of success postulates is a
dispassionate decision, based· on the facts and the law, that a court of
appeal could reasonably arrive at a conclusion different to that of the trial
court. In order to succeed, therefore, the appellant must convince this
court on proper grounds that he has prospects of success on appeal and
that those prospects are not remote but have a realistic chance of
succeeding. More is required to be established than that there is a mere
possibility of success, that the case is arguable on appeal or that the
case cannot be categorised as hopeless. There must, in other words, be
a sound, rational basis for the conclusion that there are prospects of
success on appeal."
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(9) In Mont Chevaux Trust (IT" 212128) v Tina Goosen (unreported) Land
Claims Court Case no: LCC 14R/2014, Bertelsmann J at para 6, when dealing
with the concept of reasonable prospects of success, stated,
ANALYS IS
"(6) It is clear that the threshold for granting leave to appeal against a
judgment of a High Court has been raised in the new Act. The former
test whether leave to appeal should be granted was a reasonable
prospect that another court might come to a different conclusion, see
Van Heerden v Cronwright and Other 1985 (2) SA 342 (T) at 343 H . The
use of the word "would" in the new statute indicates a measure of
certainty that another court will differ from the court whose judgment is
sought to be appealed against. .. "
(10) The leave to appeal by the applicant is premised on the ground that, the
appeal wou ld have a reasonable prospect of success. The following can b~
gleaned from the grounds of the application for leave to appeal that, "it is further
respectfully subm itteq that there are reasonable prospects of success that
another court can come to another finding on the sentence imposed."
(11) In argument, Ms Simpson, contended that the trial court did not apply
sentence discretion properly and judicially ·and it misdirected itself when
sentencing the applicant to 15 years imprisonment. This contention is made
against the background that the respondent called upon the trial court to impose
a sentence of life imprisonment, alternatively 25 years imprisonment. I have
dealt in judgment in the sentence that the prescribed minimum sentencing is
not applicable in this matter. However, the court has inherent jurisdiction to
impose any sentence which includes life imprisonment.
(12) The personal circumstances of the applicant when imposing sentence were
adequately considered, the interests of society, the impact of crime on the
family of the deceased and the nature and severity of the crime committed. I
family of the deceased and the nature and severity of the crime committed. I
found no justification in imposing a sentence' of life imprisonment or 25 years
imprisonment as was contended by the respondent. In my judgment on
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sentence, I did not overemphasize any aspect, mentioned above, above any
other aspect.
(13) The advanced age of the applicant and the fact that he is suffering from gout
were all considered. Despite not being a medical practitioner, Ms Clark a
Clinical Psychologist who testified on behalf of the applicant, is of the view that
the gout that the applicant is suffering from is treatable and it does not have the
effect of impacting him on his mobility. That is borne of the fact that the ailment
did not temper with his love for gardening. Mr Matthee in his report in
consideration of correctional supervision as a sentence, proposed that in terms
of section 52 of the Correctional Services Act 11 1 of 1998, community service
as opposed to direct imprisonment can also be recommended as a sentence.
Community service encompasses physical work and it is my considered view
that such, should not have been considered if the applicant's gout was that
serious. He was hospitalised because of lack of treatment after running out of
funds, meaning that if he received treatment, hospitalisation could have been
unnecessary.
(14) It is appreciated that applicant pleaded guilty to murder and further that it is
the applicant who approached a journalist and disclosed his involvement in the
commission of the murder. He proceeded to present a detailed section 112(2)
statement outlining his role and involvement. But when he appeared before Ms
Clark gave a contradictory version of the circumstances of the murder. It is
acknowledged that the respondent accepted the applicant's plea, but I fail to
understand why the applicant could not have just simply repeated the
circumstances of the murder as outlined in section 112(2) to Ms Clark.
(15) It is further contended that the court erred in finding that the applicant did not
have a true appreciation of the consequences of his action and thus not
remorseful. In S v Matyityi it was said that for the offender to be said that he is
remorseful. In S v Matyityi it was said that for the offender to be said that he is
truly remorseful must have a true appreciation of the consequences of his
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action, which I found that the applicant did not have. I have stated my reasons
for coming to that conclusion in my judgmef)t on sentence and I do not intend
repeating them here.
(16) My judgment was wrongfully understood by Ms Simpson when she contended
that, the finding that the applicant is required to testify against others involving
the same offence to prove his remorse is unfair. What was said in the judgment
is the following;
" ... I hope you will also use this opportunity to reflect, and hopefully you
will change your mind in testifying on behalf of the state in the matter
pertaining to your former colleagues ... "
( 17) This is an obiter remark made at the conclusion of the judgment and can in no
way stand as a finding. No negative inference was drawn of the failure or none
willing of the applicant to testify on behalf the state against his former
colleagues and that is his right to do so which this court ought to respect.
(18) I could not consider sentencing options suggested on betialf of the accused
as I deemed it that they are not proportional to the crime committed after
considering evidence in its totality. Therefore, I see no sound, rational basis for
the conclusion on that there are prospects of success on appeal.
ORDER
(19) In the result, the following order is made.
1. Application for condonation of the late filing of the application for leave to
appeal is hereby granted.
2. Application for leave to appeal against sentence is hereby refused.
JUDGE OF HIGH COURT,
PRETORIA
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APPEARANCES:
For the Applicant
Instructed by
: Ms S. Simpson
: Legal Aid South Africa
For the Respondent: Adv. L. Davhana
Instructed by : Director of Public Prosecutions
Date of hearing: 15 August 2025
Date of Judgment: 15 September 2025
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