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[2026] ZAGPJHC 531
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Matlakale v National Prosecuting Authority (017071/2026) [2026] ZAGPJHC 531 (20 February 2026)
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IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
CASE
NO
: 017071/2026
DATE
:
20.02.2026
(1) REPORTABLE:
NO
(2) OF INTEREST TO
OTHER JUDGES : NO
(3)
REVISED
In
the matter between:
LUCAS PONTO
MATLAKALE
and
NATIONAL PROSECUTING
AUTHORITY, THE STATE
JUDGMENT
MOULTRIE,
J
: This matter comes
before me in the Urgent Court, broadly under the following
circumstances.
The
applicant was convicted in the Regional Court on three counts, two of
fraud and one of corruption. He was subsequently sentenced
in
November 2023 to periods of imprisonment of 15 years and 7 years
respectively on the fraud convictions, and to 7 years
on the
corruption conviction, all to run concurrently.
The
applicant sought leave to appeal against both the conviction and the
sentence, and for bail pending appeal. When those
applications
were refused in the Regional Court, he petitioned this Court for
leave to appeal, initially on both conviction and
sentence.
While
that petition remained pending, the applicant applied to this Court
on two occasions to be granted bail. It seems to
me that those
applications were, on both occasions, “bail appeals”
properly-so-called, in the sense that they were
appeals against the
Regional Court’s decision not to grant bail pending the outcome
of the petition for leave to appeal.
In the
first of these applications, Mudau J (correctly in view view)
indicated that the matter should be dealt with through the
procedure
laid down for bail appeals in this Court’s practice directive.
Undeterred, the applicant then launched a
second application, which
came before Bester AJ. Although it is not apparent to me whether this
was in the “ordinary”
urgent court, or whether was
allocated to him by some other means, it was treated as a bail
appeal. Although Bester AJ considered
that there may
potentially be grounds for the grant of bail pending the
determination of the petition for leave to appeal in view
of the
lenient sentence imposed upon the applicant's alleged co-conspirator,
Mr Perreira, he dismissed the bail appeal in the absence
of further
information regarding Mr Perreira's conviction and sentence. (see
Matlakale v S (A70/2024) [2024] ZAGPJHC
764 (30 July 2024)
)
In due
course, the petition for leave to appeal came before two judges of
this division. On 24 November 2025, Kuny and Mkhabela
JJ granted
leave to appeal, but only in respect of sentence. (I pause to note
that the decision on the petition does not specify
which of the
sentences leave to appeal was granted against and I thus assume in
favour of the applicant that it was in respect
of all three
sentences). The learned judges deferred a decision on the question of
leave to appeal on conviction pending the delivery
of a more complete
record of the evidence that served before the trial court.
As I
have indicated, the applicant now applies in the “ordinary”
Urgent Court for bail pending the determination of
the appeal. In
considering whether I should entertain the matter on an urgent basis,
I wish to say at the outset that I acknowledge
(as does the
respondent) the urgency of bail as a general principle.
Urgency, however, is a matter of degree. The urgency
with which
any matter can and should be treated must be considered in its
factual context. In the current matter, that context
briefly is
this. Subsequent to the decision of Kuny and Mkhabela JJ in
November 2025, the applicant deposed to a founding
affidavit on
22 December 2025 in anticipation of this urgent bail application.
For reasons that are not apparent to me, the
application itself was
then only launched on 28 January 2026, setting the matter down for
hearing in the Urgent Court in the week
of Tuesday, 17 February 2026,
and giving the respondent only 2 court days (until 10h00 on 2
February 2026) within which to deliver
a notice of intention to
oppose and a further 4 court days (until 10h00 on 6 February 2026) to
deliver an answering affidavit.
The
respondent did deliver a notice of intention to oppose but delivered
an unsigned answering affidavit. Ms Morton, who appeared
for
the respondent advised me that the reason why the answering affidavit
was unsigned had to do with concerns in the office of
the Director of
Public Prosecutions as to whether the procedure for the determination
of this bail application was the correct
one. I will return to
that shortly.
Having
been enrolled in the week of 17 February 2026, the application was
allocated to me on Thursday, 12 February 2026, whereupon
I noticed
that the papers were not available on CaseLines. I issued directions
on the afternoon of 12 February 2026 that this be
attended to.
Unfortunately, when the matter was called on Tuesday, 17 February
2026, there were still no papers available
on CaseLines, and I had
consequently not been able to read into the matter. By agreement, the
application was adjourned to 10h00
on Friday, 20 February 2026.
Although
the applicant’s representatives then made the application
papers available to me on Caselines, further documents
were uploaded
onto CaseLines in the period between 17 and 20 February. These
included an amended notice of appeal dated 11 February
2026.
(Although the implications of this document are not clearly apparent
to me, they are of some concern: whereas the affidavit
in the bail
application states that the applicant does not pursue his appeal on
conviction, there is no indication that there has
been a formal
amendment of any notice of appeal to exclude the application for
leave to appeal the conviction, and it would appear
that Judges Kuny
and Mkhabela are still to consider further the application for leave
to appeal on conviction, having called upon
the applicant to furnish
them with the record relating to the evidence of Mr Hanyani).
Furthermore, the applicant’s counsel
has uploaded amended heads
of argument.
These
procedural difficulties that I have faced in preparing are aggravated
by the fact that the respondent raises what appears
to me to be a
complex and somewhat novel
point in
limine
regarding the jurisdiction of
this Court to consider a bail application under the current
circumstances.
In
response to this point
in limine
,
Mr Young refers to the provisions of section 309(3) read with
section
304(2)(c)(vi)
of the
Criminal Procedure Act, 51 of 1977
and also to
the judgment of the Free State Division in
S
v Sello
2023 (2) SACR 399
(FB)
,
in which His Lordship Mr Daffue concluded that the High Court had
jurisdiction to consider a bail application under what appear
to be
very similar circumstances. The Court’s reasoning appears
to have been founded in the common law inherent jurisdiction
of the
High Court and to build on the line of cases which has its origins in
the case of
S v
Hlongwane
1989 (4) SA 79
(T)
.
Ms
Morton, on the other hand, submitted that this Court has no
jurisdiction to consider a bail application under the current
circumstances,
and that the Court with jurisdiction is in fact the
Trial Court.
Ms Morton submits that the provisions of
section 321
of the
Criminal
Procedure Act apply
, although I should say immediately that I have my
doubts as to the correctness of that submission, in view of the fact
that the
applicant is not currently serving a sentence imposed by a
“Superior Court”.
However,
I am also doubtful that the conclusion of Daffue J as to the source
of the Court's power to consider a bail application
under the current
circumstances are correct. It seems to me, at least at a
prima
facie
level (and I wish to make it
clear that I do not intend to express any final view in this regard),
that the source of a High Court’s
jurisdiction to hear a bail
application in the current circumstances is
section 309(3)
read with
304(2)(c)(vi), and that that there is no need for the court to invoke
any common law jurisdiction. More importantly,
it would seem to me
(and again, I say this without deciding), that “such court”
to be convened for the purposes of
considering such an application
under
section 305(2)(c)(vi)
would have to be one sitting “as a
court of appeal”, as expressly provided for in
section
304(2)(a).
Although the bail application is not itself an appeal, it
makes logical sense to me that it would be High Court sitting as a
Court
of appeal pursuant to the grant of leave to appeal that would
have jurisdiction to consider the question of bail pending the
determination
of the appeal pending before it.
Although
none of what I have set out above detracts from the overall principle
of the urgency of bail applications, I am not satisfied
that this is
a matter that should and can properly be entertained and decided by
me in the Urgent Court this week. I have
already adverted to
the relatively short time periods within which the application was
brought. I have already adverted to
what appears to me to be a
complex and novel question of law. In addition, it appears to
me that the question is one that
raises issues of judicial policy and
requires careful and mature consideration on the basis of detailed
submissions by duly-prepared
counsel, before a duly-prepared Court.
I do
not consider myself to be in that position today and (without casting
any dispersions on either of the practitioners who appeared
before me
under difficult circumstances this week) I do not think it would be
fair to their clients for the issue of jurisdiction
to be decided in
the Urgent Court under the current circumstances.
Finally,
I should point out that, apart from the “general” urgency
of bail, the specific urgency relied upon by the
applicant is the
somewhat speculative submission that if his 15-year and 5-year
sentences in respect of the two convictions for
fraud were to be
reduced to 5 years on appeal, he would shortly be entitled to apply
for parole. While I take this submission
seriously, I am
cognisant of the fact that the applicant is also serving a sentence
of 7 years in respect of his conviction on
a third count of
corruption, which is not obviously impacted by the “parity
principle”, upon which he relies upon as
the primary basis for
the current bail application. This is a further reason why I do
not consider that there is a pressing
and immediate reason why this
application should be dealt with by me today.
Before
closing, while I propose to order that the application is removed
from the urgent roll for lack of sufficient urgency, I
wish to make
it clear that I do consider the matter to be urgent in principle, as
with any other bail matter. Furthermore, while
I am not in a position
to direct the Acting Deputy Judge President to undertake any
procedural step, I wish to record that it is
my considered view that
this application raises an important, difficult and complex question
of jurisdiction and that it would
be appropriate that it be enrolled
for hearing before a bench comprising at least two, if not three,
judges of this division.
The
matter is removed from the roll.
MOULTRIE, J
JUDGE OF THE HIGH
COURT
DATE
OF JUDGMENT
: 20 February
2026
REVISED
:
27 February 2026