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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: A208/2019
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES
DATE 13 October 2025
SIGNATURE
In the matter between:
MANYABA RUBBEN MOHLALOGA Applicant
And
THE STATE Respondent
JUDGMENT
MOSOPA J
[1] This is an application for the extension of bail of the applicant, pending an
application for leave to appeal to the Constitutional Court. The application is opposed
by the respondent, suffice to say that the respondent did not file an answering
affidavit in opposition of the application.
Background
[2] The applicant, who was arraigned as accused 2 in the Regional Division of
Gauteng, Pretoria, was convicted of one count of fraud and one count of
contravention of section 4 of the Prevention of Organised Crime Act 21 of 1998
(POCA) (money laundering) on 15 January 2018. He was then sentenced, as a
sequel to such convictions, on 14 February 2019, to an effective sentence of 20
years imprisonment. The trial court granted the applicant leave to appeal against his
sentence but refused leave to appeal his conviction.
[3] Pursuant to such conviction and sentence, the applicant, who was out on bail
at that stage , successfully brought a bail application pending petition and appeal to
the High Court and was permitted to bail in the amount of R70 000,00.
[4] This appeal to the High Court was dismissed on 23 January 2023. The
applicant’s bail was then reinstated by Neukircher J on 6 March 2023 . The
Applicant’s bail was granted in the amount of R70 000,00, with conditions attached ,
pending special leave to the Supreme Court of Appeal (SCA). In terms of Neukircher
J’s order, the applicant had to inter alia:
4.1 inform the Investigating officer once the appeal process is
concluded and
4.2 report to the Pretoria Magistrate’s court within 14 days should his
petition be declined.
[5] On 1 September 2023, the applicant’s petition was determined by Mbatha JA
and Unterhalter AJA (as he was then) in the Supreme Court of Appeal (“SCA”) and
the following order was made:
5.1 The application for condonation is granted.
5.2 Special leave to appeal against sentence is granted to the full court
of the Gauteng Division of the High Court, Pretoria.
5.3 The application for special leave against conviction is dismissed.
[6] Aggrieved by the decision, the applicant filed an application for
reconsideration in terms of section 17(2)(f) of the Superior Courts Act 10 of 2013
(“SCAct”) on 6 November 2023 to the President of the Supreme Court of Appeal
(“SCAct”) on 6 November 2023 to the President of the Supreme Court of Appeal
(”President”). On 3 January 2024, the President made an order referring the decision
made on 1 September 2023 (dismissing the applicant’s application for special leave
to appeal against conviction ) for reconsideration and , if necessary, variation and
further that the special leave to appeal is referred for oral argument in terms of
section 17(2)(d) of the SCAct.
[7] On 8 August 2025, the SCA, after hearing oral arguments in terms of section
17(2)(d), made the following order:
7.1 The application for reconsideration of the decision ref using special
leave to appeal against conviction is struck from the roll.
7.2 The appeal against sentence is dismissed.
[8] The order had the effect that the applicant had to surrender himself to t he
clerk of the court to start serving sentence. On 29 August 2025, the applicant
brought an urgent application for the extension of bail following Neukircher J ’s order
of 6 March 2023, pending the application for leave to appeal the S CA order to the
Constitutional Court. The parties then agreed that the applicant should not surrender
himself for detention until the extension of bail application is determined.
[9] I was then allocated the file by the Office of the Acting Deputy Judge
President on 4 September 2025 to hear the matter. The applicant filed his application
for leave to the Constitutional Court on 8 September 2025, which was after filing his
application for bail to this court. The parties agreed that this matter be heard on 16
September 2025. After hearing, I then reserved judgment.
Personal circumstances
[10] The applicant, in his affidavit in support of the extension of bail pending the
petition to the Constitutional Court, averred that:
10.1. he was born on 8 August 1973 in Alberton, Gauteng Province,
South Africa, and he is currently 51 years old;
10.2. he resides at 2[...] A[...] Crescent, L[…] Estate, Silverlakes Road,
Tiger Valley, a property which is valued at R4,2 million. He has been
residing at that address for approximately 9 years;
10.3. he resides with his wife and their four children, who are all
depending on him for maintenance as his wife is unemployed. They
have been married for 22 years . The ages of his children range from
the age of 21 years to 5 years;
10.4. he is the owner of another property situated at 3[...] F[...]
Crescent, Eskol Villa Bendor, Polokwane, with an approximate value of
R2.1 million;
10.5. he does not own any assets in foreign countries and his travelling
documents have been with the Investigating Officer since he was
released on bail, following Neukircher J’s order;
10.6. he operate s a commercial farm owne d by Manyaba Group CC,
and he is a member of the close corporation, situated at D […], D[…]
H[…], Modimolle, Limpopo , farming with livestock and poultry with a
net income of between R25 000,00 and R40 000,00 per month;
10.7. he furthermore generates income through the operation of a bus
and taxi also owned by Manyaba Group CC, under the control of
Moletjie Taxi Association and generates an income of approximately
R8 000,00 per month;
10.8. he is also a student at Tshwane University of Technology,
pursuing a Doctorate in Public Management, and
10.9. he will be in a position to pay a reasonable amount of bail, if
permitted to bail.
Applicable legal principle
[11] The p roviso to section 58 of the Criminal Procedure Act 51 of 1977 (“Act”)
makes the following provision:
“[P]rovided that where a court convicts an accused of an offence
contemplated in Schedule 5 or 6, the court shall, in considering the question
whether the accused's bail should be extended, apply the provisions of
section 60 (11) (a) or (b), as the case may be, and the court shall take into
account-
(a) the fact that the accused has been convicted of that offence; and
(b) the likely sentence which the court might impose.”
[12] The accused was convicted of a crime which falls under Schedule 5, meaning
the relevant provision, which must be read together with the provision in section 58 ,
is section 60(11)(b) of the Act, which reads as follows:
“60(11) Notwithstanding any provision of this Act, where an accused is
charged with an offence-
(b) referred to in Schedule 5, but not 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 the interests of justice permit his or her
release.”
[13] The relevant section places an onus on the bail applicant to prove , by
adducing evidence, that it is in the interests of justice that he or she be released,
failing which the court determining such bail application will order him or he r to
remain in detention. The bail applicant must convince the court dealing with the bail
application that it is in the interests of justice to permit his release 1. (In S v Bruintjies2
even though the bail applicant was convicted of a crime resorting under Schedule 6,
the same principle is applicable in casu).
[14] Of importance is what was stated in S v Madlala3:
“A bail application is allowed along the way at each step of arrest and trial
(and application for leave to appeal and petition), but the closer the accused
comes to conviction, the lower, generally speaking, are the chances that an
accused will be permitted to bail because once convicted and sentenced he
must start serving his sentence. That fact is echoed in the CPA in s 307, in
must start serving his sentence. That fact is echoed in the CPA in s 307, in
that, the legislation demands that execution of a sentence is not suspended
1 S v Rohde [2019] ZASCA 193; 2020 (1) SACR 329 (SCA) at para 4.
2 2003 (2) SACR 575 (SCA) 577 (b).
3 [2019] ZAGPPHC 599; 2020 (2) SACR 120 (GP) at para 26.
unless bail is granted. The default position in the CPA is, therefore, that, once
a sentence is imposed, sentence must be implemented, and the accused
must start serving his sentence unless bail is granted.”
[15] The Madlala matter endorses the principle of finality of matters, more
especially where a bail applicant is convicted and sentenced. The only exception will
be where bail is granted. The approach adopted in the Madlala matter, does not
offend the provisions of section 35(3)(o) of the Constitution, which reads as follows:
“(3) Every accused person has a right to a fair trial, which includes the right—
(o) of appeal to, or review by, a higher court.”
However, this is not an absolute right.
[16] The test in application s for bail pending leave to appeal to the Constitutional
Court is “reasonable prospects of success”. In S v Smith,4 the following was stated:
“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.” (Footnotes omitted.)
[17] In terms of section 17(1) of the SCAct;
“17(1) Leave to appeal may only be given where the judge or judges
concerned are of the opinion that—
(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.”
heard, including conflicting judgments on the matter under
consideration.”
4 [2011] ZASCA 15; 2012 (1) SACR 567 (SCA) at para 7.
[18] The court dealing with bail pending leave to appeal to the Constitutional Court
is not seized with the authority to determine the merits of the appeal, but should
establish whether there are reasonable prospects that the Constitutional Court would
come to a different conclusion from the one arrived at by the SCA. In S v Nel ,5
Moseneke J, when dealing with this aspect, stated;
“The decision of this Court is to determine whether there is a reasonable
prospect of success of the application, should it come before the
Constitutional Court. That is a very vital distinction. Superior Courts, in the
normal course of their functions, are called upon to pass judgment on whether
there is a reasonable likelihood of success should an appeal come before
another Court of appellate jurisdiction. I am not called upon to usurp the
function of the Constitutional Court. I am called upon to determine, on the
total evidentiary material before me, whether the Constitutional Court is likely
to alter materially the decision arrived at by the Supreme Court of Appeal.
That is clearly very different from the function of the Constitutional Court,
which would be seised with the determination of the merits of the actual
application for leave which I am not called upon to do.”
[19] In S v Masoanganye 6 the court held that what has to be considered when
granting bail pending appeal was the seriousness of the crime, the real prospects of
success on conviction, and the real prospects that a non -custodial sentence may be
imposed and whether the bail applicant is a flight risk or not. All these factors must
be considered together with the provision of section 60(4)(a)-(e) of the Act.
[20] The right to be presumed innocent is no longer available to the applicant due
to conviction and the resultant sentence. The applicant was sentenced to an
effective 20 years imprisonment. In S v Rohde,7the following was stated:
“[5] The next difficulty for the appellant is his changed status. The stark reality
“[5] The next difficulty for the appellant is his changed status. The stark reality
is that the presumption of innocence no longer operates in his favour. As
stated by the court a quo:
‘Pre-trial release allows a man accused of crime to keep the fabric of
his life intact, to maintain employment and family ties in the event he is
acquitted or given a suspended sentence or probation. It spares his
5 2002 (1) SACR 425 (T) at 430 b-e. See also: S v Hlongwane 1989 (4) SA 79 (T).
6 [2011] ZASCA 119; 2012 (1) SACR 292 (SCA) at para 14.
7 [2019] ZASCA 193; 2020 (1) SACR 329 (SCA) at paras 5-6.
family the hardship and the indignity of welfare and enforced
separation. It permits the accused to take an active part in planning
his defence with his counsel, locating witnesses, proving his capability
of staying free in the community without getting into trouble. This
including conflicting judgments under considerations.
[6] On conviction other considerations come to the fore. An increased risk of
abscondment once a person has been convicted and sentenced to a lengthy
term of imprisonment is inevitable. The severity of the sentence imposed will
be a decisive factor in the court‘s exercise of its discretion whether or not to
grant bail. The notional temptation to abscond (which confronts every accused
person) becomes a real consideration once the length of the gaol sentence is
known. (Footnotes omitted.)”
Analysis
[21] It is now approximately seven years since the applicant was convicted and
sentenced. It took a period of approximately one year and a month after the
applicant was convicted in January 201 8 to be sentenced on 14 February 2019 for
charges that stemmed from December 2007 to 1 February 2008. The reasons for the
delay are not clearly set out in the applicant’s affidavit in support of the bail
application. Since his sentence , the matter served before different forums, from the
High Court up to the SCA. In the SCA , t he matter served before three different
forums.
[22] When the matter served before Mbatha JA and Unterhalter AJA (as he was
then) the applicant was granted special leave to appeal sentence, but special leave
against conviction was dismissed. On 8 August 2025, the SCA eventually dismisse d
the appeal against sentence and refused special leave to appeal against conviction.
[23] The gist of the applica nt’s contention is based on the interpretation of section
17(2)(f) of the SCAct and the fact that there is some other compelling reason why the
appeal should be heard , because there are conflicting judgments under
appeal should be heard , because there are conflicting judgments under
consideration. The further contention is that the SCA, when dismissing the appeal
against sentence and striking off the special leave against conviction, exercised
authority that it did not possess. The applicant argued that t he issue relating to
consideration of “exception al circumstances” is the realm of the President and the
President dealt with such when considering the application in terms of section
17(2)(f) of SCAct. The judges who dismissed the special leave to appeal were only
expected to deal with the merits of the matter and not to repeat the subject matter
that had already been determined by the President.
[24] In support of his contention, the applicant placed reliance on the minority
judgment in the matter of Schoeman v Director of Public Prosecutions,8 which states
as follows:
“[6] This case presents a direct challenge to the principle recently established
by this Court in Bidvest Protea Coin Security (Pty) Ltd v Mabena (Bidvest).
The central issue is the proper interpretation of s 17(2)( f) of the Superior
Courts Act 10 of 2013 (the Act). It must be decided whether the existence of
‘exceptional circumstances’ is a jurisdictional fact to be determined by the
Court hearing the reconsideration application, as Bidvest held, or whether it is
a matter for the President of this Court to determine when deciding whether to
refer a matter for reconsideration.
[7] The President, having been satisfied that exceptional circumstances were
present, referred the refusal of the appellant's petition for reconsideration by
this Court. Bidvest held that, as a preliminary point, the Court must first satisfy
itself that exceptional circumstances exist before it can entertain the merits of
the reconsideration application. For the reasons that follow, I conclude that
Bidvest was wrongly decided and its interpretation of s 17(2)( f) should not be
followed.”
[25] The majority in Schoeman disagreed with the minority and stated as follows:
“[56] I have read the judgment of my colleague (the first judgment). I am not in
agreement with its interpretation of s 17(2)( f) of the Superior Court Act 10 of
2013, nor its treatment of the doctrine of precedent. These are matters of
2013, nor its treatment of the doctrine of precedent. These are matters of
importance. Litigants are entitled to a settled regime of rules that govern
appeals in this Court. The first judgment is antithetical to this essential
requirement of the rule of law.”
8 [2025] ZASCA 124.
[26] The SCA, when dismissing the applicant’s special leave to appeal conviction
and sentence , considered the aspect relating to “exceptional circumstances” and
was unable to find that exceptional circumstances exist in the case of the applicant
that warrant reconsideration of the decision refusing leave to appeal.
[27] This topic has been a subject matter of litigation a nd both the SCA and the
Constitutional Court have made pronouncements in several cases. In Motsoeneng v
South African Broadcasting Corporation SOC Ltd and Others,9 the SCA held that the
court to which the decision refusing leave to appeal is referred, is required , as a
threshold question, to determine whether there are exceptional circumstances that
warrant a referral for consideration. The SCA i n Bidvest Protea Coin Security (Pty)
Ltd v Mabena ,10 endorsed the portion held in Motsoeneng when the following was
stated:
“Both the exclusivity interpretation and the jurisdictional fact interpretation
have some foundation in the text of s 17(2)(f). As we have observed, the
power is conferred upon the President and its exercise is to refer the decision
on petition to the Court. That framing supports the exclusivity interpretation.
However, the text confers the power upon the President if there are
exceptional circumstances, and does not make the determination of those
circumstances the exclusive preserve of the President. If the exercise of a
power depends upon the existence of a state of affairs (here exceptional
circumstances), absent a clear expression to the contrary, the repository of
the power will not lightly be found simultaneously to exercise the power and
be the only judge as to whether the state of affairs exists that permits of the
exercise of such power. Hence, it lies with the Court to which the referral is
made by the President to be the ultimate arbiter as to whether the
jurisdictional fact for the exercise of the power exists. This reasoning supports
the jurisdictional fact interpretation.”
the jurisdictional fact interpretation.”
[28] The same approach was adopted by the Constitutional Court in Liesching and
Others v The State .11 The minority in Liesching supported the contention made by
the applicant. To this end, the contention by the applicant cannot be of merit as he is
relying on minority judgments and such cannot be considered to amount to
9 (2024) ZASCA 80; 2025 (4) SA 122 (SCA) at para 19.
10 [2025] ZASCA 23; 2025 (3) SA 362 (SCA) at para 13.
11 [2018] ZACC 25; 2019 (1) SACR 178 (CC); 2018 (11) BCLR 1349 (CC) at para 137.
conflicting judgments which compel the leave to appeal to be heard by the
Constitutional Court.
[29] In Cloete and Another v S; Sekgala v Nedbank Limited ,12 when dealing with
the Constitutional Court’s jurisdiction, the Constitutional Court held that:
“This court’s jurisdiction is del ineated by section 167 of the Constitution. This
section requires that a litigant show that the matter raises a constitutional
issue or that it raises an arguable point of law of general public importance ,
and that it is in the interest of justice for leave to be granted. However, that is
not the only pre -requisite for this court to be ve sted with jurisdiction. Section
167(6) of the Constitution states;
‘National legislation or the rules of the Constitutional Court must allow
a person, when it is in the interests of justice and with leave of the
Constitutional Court—
(a) to bring a matter directly to the Constitutional Court; or
(b) to appeal directly to the Constitutional Court from any other
court.” (Footnotes omitted).
[30] The proviso in section 17(2)(f) of the SCAct has since been amended and
substituted by section 28 of the Judicial Matters Amendment Act 15 of 2023, and
reads as follows:
“(f) The decision of the majority of the judges considering an application
referred to in paragraph (b), or the decision of the court, as the case may be,
to grant or refuse the application shall be final: Provided that the President of
the Supreme Court of Appeal may, in circumstances where a grave failure of
justice would otherwise result or the administration of justice may be brought
into disrepute whether of his or her own accord or on application filed within
one month of the decision to the court for consideration and, if necessary,
variation.”
[31] The SCA in terms of this matter at para 21 stated that;
[21] As held by the Constitutional Court in Liesching and Others v S,
exceptional circumstances envisaged in s 17(2)(f) of the Superior Court’s Act
exceptional circumstances envisaged in s 17(2)(f) of the Superior Court’s Act
are circumstances which give rise to a probability of grave individual injustice,
12 [2019] ZACC 6; 2019 (4) SA 268 (CC); 2019 (5) BCLR 544 (CC) at para 22.
or the administration of justice might be brought into disrepute if no
reconsideration occurs. This formulation has been adopted by the legislature
in the amendment to s 17(2)(f) which came into effect on 3 April 2024. Since
this matter was referred by the President to the court for consideration on 3
January 2024, the old formulation of s 17(2)(f) still applies.”
[32] Based on the above , it is my considered view that there are no prospects of
success of the applicant’s leave to appeal to the Constitutional Court.
[33] The respondent did not file any opposing papers to the personal
circumstances as averred in the applicant’s founding affidavit in support of bail. It is
for that fact that it is accepted that such are admitted by the respondent. The
applicant has been on bail since the commencement of his trial . His bail was
extended after the appeal to this court was refused. He is currently on bail and there
is no evidence that he defaulted on his bail conditions.
[34] As already indicated , the applicant is sentenced to a period of 20 years
imprisonment. The applicant is convicted of a very serious crime of fraud and money
laundering, the money that the government intended to assist previously
disadvantaged farmers financially with. The applicant, in his capacity as a member of
parliament and the Chairperson of the Portfolio Committee on Agriculture , was
disqualified from accessing such funds, a fact that was known to the applicant at the
time of the commission of the offences that he has been convicted and sentenced of.
[35] I am also alive to the fact that the applicant has surrendered his passport to
the Investigating officer. However, there is no possibility of the applicant facing a
non-custodial sentence should his leave to appeal to the Constitutional Court b e
successful against sentence. Granting the applicant bail at this stage will be
tantamount to postponing his sentence. The applicant seeks relief that the
tantamount to postponing his sentence. The applicant seeks relief that the
Constitutional Court remit the matter back to the SCA for determination of the section
17(2)(f) application, meaning that if successful, there will be another delay for him to
start serving his sentence.
[36] Based on the above, it is apparent that the applicant failed to adduce
evidence that satisfies this court that the interests of justice permit his release on
bail. There is no averment made by the applicant that if his bail is not extended , his
business will suffer. With the many businesses that the applicant is conducting, it can
be inferred that he employed people who can look after his business in his absence.
His wife is also unemployed and she can be in a position to safeguard the business
affairs of t he applicant. The academic qualifications of the applicant’s wife were not
made available, but taking into account the duration that the applicant has been
conducting his businesses, it can be inferred that she can be in a position to assist.
The occupation and academic qualifications of his eldest son was also not stated, in
light of his age (21 years), he could also be in a position to assist with the applicant’s
businesses.
ORDER
[37] As a result, the following order is made:
1. Application for bail pending leave to appeal to the Constitutional Court is
hereby refused.
2. The applicant is ordered to hand himself over to the clerk of court , Pretoria
Magistrates Court (Specialised Commercial Court) within 7 days of this
judgment, to start serving his sentence.
M.J MOSOPA
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Appearances:
For the Applicant : Adv Van Niekerk
Instructed by : Krause Attorneys Inc
For the Respondent : Adv A.G. Janse Van Rensburg
Instructed by : Director of Public Prosecutions, Pretoria
Date of Hearing : 16 September 2025
Date of Judgment : 13 October 2025