THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Non-reportable
Case No:  887/2015

In the matter between:

DONALD KHOBANE

APPELLANT

and

THE STATE

RESPONDENT

Neutral citation:
Khobane v S (887/15) [2016] ZASCA 124 (26 September 2016)
Coram:
Shongwe, Willis, Dambuza, Mathopo and Mocumie JJA
Heard:
2 September 2016
Delivered:
26 September 2016
Summary:
Sentence – Criminal Law Amendment Act 105 of 1997 (the Act) –
Appellant sentenced to 15 years‟ imprisonment for theft of R3 million from ATMs in
terms of the Act – Charge sheet made no mention of possibility of sentence in terms
of the Act – Magistrate also failed inter alia to warn the appellant at commencement
of trial that if convicted he faced the risk of a sentence imposed in terms of the Act –
Criminal petitions procedure requiring convoluted process – Appeal against the high
court‟s dismissal of the petition against regional court sentence upheld – Leave
granted to appeal against sentence.

___________________________________________________________________

ORDER

On appeal from:  Gauteng Local Division of the High Court, Johannesburg
(Borchers J and Karam AJ sitting as a court of appeal):
1. The appeal is upheld.
2. The order of the court below refusing leave to appeal is set aside and replaced
with the following:
„Leave to appeal to the Gauteng Local Division of the High Court,
Johannesburg is granted.‟

JUDGMENT

Willis JA (Shongwe, Dambuza, Mathopo and Mocumie JJA concurring):

[1] This is an appeal, with the leave of this court, against the dismissal by the
Gauteng Local Division, Johannesburg (Borchers J and Karam AJ) of an application
for leave to appeal against a sentence of a regional court, Alexandra.
Background
[2] The appellant, Mr Donald Khobane, had been employed by Nedbank as an
„ATM consultant‟. As such, his main job had been to balance and cash-replenish the
nine automatic teller machines (ATMs) which were assigned to him and were under
his control, located at various places in Johannesburg.1 For this purpose, he had
keys and combination numbers for accessing the ATMs. He absconded from work
on 30 July 2009. After a few days, his supervisors became suspicious. An inspection

1 These were: Benmore Gardens, Epsom Downs, Fourways (in two locations), Lonehill, Rivonia,
Sandown, Sandton City and Sunninghill.

revealed that there were cash shortages at those ATMs which had been under the
appellant‟s control. The total missing cash was in excess of R3 million.

[3] The appellant was arrested on 19 August 2009. He first appeared before the
Alexandra Regional Court on 21 August 2009 and was subsequently granted bail. It
appears from a confession which the appellant made to a member of the South
African Police Service, Captain Shaun Henry Robson, on 21 August 2009 (which he
later disavowed and unsuccessfully challenged in a trial-within-a-trial) that he could
have come under the influence of some kind of „spiritual healer‟, known as Professor
Zao, who had told the appellant that he had a „symbol of wealth‟ in his hands and
that if the appellant lent him as much money as possible, taken from the ATMs, the
„professor‟ would use it to „cleanse‟ him and that the appellant could then return the
money and would never again have financial problems. The appellant took vast
amounts of money from the ATMs to Zao on two occasions.

[4] The appellant was arraigned before the Alexandra Regional Court on 24
August 2011 on a charge of stealing an amount in excess of R3 million from his
employer, Nedbank, during the period between 30 July 2009 and 1 August 2009. He
had the benefit of legal representation during his trial, having pleaded not guilty. He
was convicted as charged by the magistrate on 4 September 2012 and on the same
day sentenced to 15 years‟ imprisonment. Inasmuch as the theft involved an amount
of more than R500 000, the charge sheet did not indicate that the sentence would be
imposed in terms of the provisions of Part II of Schedule 1 of the Criminal Law
Amendment Act 105 of 19972 – widely known as the „minimum sentence legislation‟.

[5] At the trial, the appellant‟s supervisor, Mr Sebastian Bowles, also known as
his „field controller‟, testified that the appellant was the only person who could have
removed the money in the manner that it had been. In this regard, Mr Bowles‟
evidence was corroborated by that of Mr Marcel Rhoda, who at the time was
employed at Nedbank as an ATM controller for the West Gauteng region.
Concerning conviction, the evidence against the appellant was overwhelming.

2 In terms of s 51(2)(a)(i) of the Criminal Law Amendment Act 105 of 1997, the minimum sentence to
be imposed on a first offender following a conviction of  theft involving an amount of more than R500
000 is 15 years‟ imprisonment unless substantial and compelling circumstances exist which justify the
imposition of a lesser sentence.

[6] As already mentioned above (para 1), the charge sheet made no reference to
the possibility of the sentence being imposed in terms of the prescribed minimum
sentences set out in the Act. Although parts of the record relating to the initial
appearances before court, the bail application and the various remands are missing,
it does not appear that the appellant had been warned by the trial court that, if
convicted, he faced the risk of 15 years‟ imprisonment.

[7] The appellant had been 28 years of age at the time of the commission of the
offence. He was a first offender and was the father of two young children. In respect
of sentence the magistrate found that there were no substantial and compelling
circumstances, which would justify a departure from the prescribed minimum
sentence. He mentioned the fact that the appellant had shown no remorse and the
prevalence of theft involving ATMs, and the inconvenience it caused to many other
people, as potentially aggravating circumstances. Immediately after the magistrate
had sentenced the appellant, his legal representative made an application for leave
to appeal against conviction and sentence from the bar. The magistrate cautioned
that he thought it unwise in the circumstances, because petitions so brought were
oftentimes not properly formulated and, accordingly, failed to show reasonable
prospects of success on appeal. The magistrate  dismissed the application for leave
to appeal.

[8] The appellant thereupon petitioned the Gauteng Local Division, Johannesburg
for leave to appeal against both conviction and sentence. On 8 May 2014, that court
(Borchers J and Karam AJ) refused the petition. The appellant thereupon requested
leave to appeal against that refusal. On this aspect too, leave was refused. The
appellant thereafter petitioned this court. On 8 September 2015, this court granted
him leave to appeal to it against the refusal of his petition. In so doing it made the
following order:
„Leave to appeal is granted to the Supreme Court of Appeal against the refusal of leave to
appeal by two Judges of the Gauteng Local Division of the High Court, Johannesburg
against his sentence of 15 years‟ imprisonment‟.

The Minimum Sentence Provisions
[9] In its reasons for dismissing the appeal against its refusal of the petition to it,
the Gauteng Local Division referred to the strong case against the appellant in
relation to the conviction. Insofar as sentence was concerned, it referred to the fact
that the appellant had abused his position of trust as an employee.

[10] The high court also referred to the well-known dictum in S v Malgas,3  where
this court said that the courts are: „to respect and not merely, pay lip service to, the
Legislature‟s view that the prescribed periods of imprisonment are to be taken to be
ordinarily  appropriate when  crimes  of  the  specified  kind are  committed‟ and the
prescribed minimum sentence is “the sentence that should ordinarily and in the
absence of weighty justification be imposed for the listed crimes in the specified
circumstance” and that “unless there are, and can be seen to be, truly convincing
reasons for a different response, the crimes in question are to elicit a severe,
standardised and consistent response from the Courts.‟4

[11] Malgas did not dispense with the right of an accused person to be treated
fairly when it comes to sentence. The contrary is true.5 The record shows that the
entire question of the imposition of minimum sentences was dealt with perfunctorily.
This court has repeatedly stressed the importance of warning a person of the risk of
minimum sentences being imposed.6

[12] By reason of the fact that there are other relevant considerations – apart from
whether the appellant was properly warned about the risk that he faced with regard
to sentence – no useful purpose would be served by incurring further delays in an
attempt to determine whether he may perhaps have been so warned.  It would also,
in the circumstances, be unfair to the appellant. The question of the appellant having
been under the sinister influence of a „confidence trickster‟ was not explored. The
facts of the case are so bizarre that they cry out for a full investigation before the

3 S v Malgas [2001] ZASCA 30; 2001 (2) SA 1222 (SCA).
4 Para 25.
5 See paras 7 to 10.
6 See, for example, S v Legoa [2002] ZASCA 122; 2003 (1) SACR 13 (SCA) paras 20 and 21; S v
Ndlovu [2002] ZASCA 144; 2003 (1) SACR 331 (SCA) para 12; S v Makatu [2006] ZASCA 72; 2006
(2) SACR 582 (SCA) paras 3 and 17; and Negondeni v The State [2015] ZASCA 132.

imposition of sentence. There was no probation officer‟s report for the magistrate to
consider.

[13]  It is indeed so that in S v Legoa,7 S v Ndlovu 8and S v Makatu,9  this court has
been careful not to stipulate that the failure to warn an accused person that faces a
prescribed minimum sentence will necessarily result in an unfair trial. In Legoa,
Cameron JA said (para 7):
„A general requirement to this effect, if applied with undue formalism, may create intolerable
complexities in the administration of justice and may be insufficiently heedful of the practical
realities under which charge-sheets are frequently drawn up.‟
The learned judge also stressed the need for a „vigilant examination of the relevant
circumstances‟.10 Under our constitutional dispensation the importance of an
accused person receiving a warning relating to the possible minimum sentence by
reference to the relevant penalty clause in the charge sheet is large.11 The issue is
inextricably linked to the right of every person to a fair trial, which includes the right
to be informed of the charge with sufficient particularity to enable answering it.12

[14] In Makatu, Lewis JA accepted the need to adopt an approach that was
„neither absolute nor inflexible‟.13 In S v Ndlovu; S v Sibisi,14  which was cited with
approval by this court in S v Mabuza & others,15 it was said that:
„[I]t will not be essential to inform [the accused person] that he is facing the possibility of a
substantial prison sentence or a sentence which may be „materially prejudicial‟ if he can
reasonably be expected already to be aware of this.‟16
A crucial question, if the charge sheet omits a reference to the Act, is whether the
accused nevertheless had a fair trial if the sentence is determined in terms thereof.
This was made clear in S v Ndlovu (para 12):17

7 S v Legoa (above) paras 21. See S S Terblanche The guide to sentencing in South Africa 2 ed
(2007), discussion under „3.4 Reference to the Act in the charge sheet‟ at 46-47.
8 S v Ndlovu (above) paras 12-14.
9 S v Makatu (above) paras 4-7.
10 Ibid.
11 S v Legoa (above) para 20; S v Cunningham 2004 (2) SACR 16 (E) at 19b-c. See also S v Ndlovu
1999 (2) SACR 645 (W) at 649. Terblanche op cit at 46.
12 Section 35(3)(a) of the Constitution.
13 Para 7.
14 S v Ndlovu; S v Sibisi 2005 (2) SACR 645 (W)
15 S v Mabuza & others [2007] ZASCA 110; 2009 (2) SACR 435 (SCA) para 15.
16 At 654f-g.

„[w]here the State intends relying upon the sentencing regime created by the Act a fair trial
will generally demand that its intention pertinently be brought to the attention of the accused
at the outset of the trial, if not in the charge sheet then in some other form, so that the
accused is placed in a position to appreciate properly in good time the charge that he faces
as well as its possible consequences‟.

[15] Although theft is a common law crime, the statutory minimum sentence of 15
years‟ imprisonment, where the amount involved exceeds R 500 000, is severely at
variance with the kind of sentencing for theft with which most people would have
been familiar, prior to the enactment of the legislation.

[16] In the circumstances of this particular case, there is a strong likelihood of an
injustice in regard to the appellant‟s sentence if the question is not reconsidered.
When accused persons have the benefit of legal representation, the reluctance of
magistrates to „descend into the arena‟, even when they have the best interests of an
accused person at heart, is quite understandable.  A few delicate immersions  by the
magistrate into the waters of an accused person‟s defence would not be out of place
in balancing the fair trial rights of the accused against the proper prosecutions of
crime. It would certainly not have been improper for the magistrate to have asked at
the commencement of the trial, whether the appellant knew that, if convicted, he was
at risk for 15 years‟ imprisonment.

[17] In the light of the observations above, there clearly are more than reasonable
prospects that, on appeal, another court may interfere with the sentence.  The
appellant was sentenced on 4 September 2012.  Leave by this court to appeal to it
was granted on 8 September 2015.  The question has arisen as to whether leave by
this court was given in terms of the Superior Courts Act 10 of 2013 (the Superior
Courts Act), which came into operation on 23 August 2013 (ie after the conviction
and sentence of the appellant) or its predecessor, the Supreme Court Act 59 of 1959
(the Supreme Court Act).

17 See also S v Legoa (above) para 22; and S v Makatu (above) paras 3-7. Terblanche notes that two
scenarios have crystallised where there would be a clear indication of unfairness in this regard,
namely (a) where the accused was misled by the charge sheet believing the State to rely on a
different sentencing regiem; or (b) where the accused is unrepresented.

Criminal petition procedure
[18] In S v Khoasasa,18 this court held that a refusal of leave to appeal to two
judges of a high court is a „judgment or order‟ or a „ruling‟ as contemplated by s 20(1)
and 21(1) of the now repealed Supreme Court Act 59 of 1959.19 This court thus held
that a petition for leave to appeal to a high court is, in effect, an appeal against the
refusal of leave to appeal by the magistrates‟ court.  This means that the refusal of
leave to appeal by the high court in terms of s 309C is appealable to this court with
the leave of the high court or, where such leave has been refused, with the leave of
this court.  In either event, so it was held in Khoasasa, the order appealed against is
the refusal of leave, with the result that this court cannot decide the appeal itself. It
follows, as Brand JA said, that in an appeal of this kind, the issue to be determined
by this court is not whether the appeal against conviction and sentence should
succeed, but rather whether the high court should have granted leave, which in turn
depends on whether the appellant could be said to have reasonable prospects of
success on appeal. The position thus stated has since been confirmed in a number
of decisions by this court.20

[19] The Superior Courts Act 10 of 2013, which came into effect on 23 August
2013 has since replaced the Supreme Court Act, provides in s 16(1)(b) that an
appeal against any decision of a division of the high court on appeal to it, lies to this
court upon „special leave‟ having been granted by this court. Since R v Sillas,21 the
test as to whether to apply amending legislation that came into operation after an
offence had been committed has been driven by considerations of reasonableness
and fairness to the accused person.22  Here, it makes no difference.23 The
appellant‟s petition was commenced in the regional court on 4 September 2012. This
court was therefore at liberty to make the order that it did on 8 September 2015. The

18 S v Khoasasa [2002] ZASCA 113; 2003 (1) SACR 123 (SCA) para 14. In S v Matshona [2008]
ZASCA 58; 2013 (2) SACR 126 (SCA) para 4, Leach AJA described the reasoning in Khoasasa as
unassailable.
19 See also S v Smith [2011] ZASCA; 2012 (1) SACR 567 (SCA) para 3.
20 See, for example, S v Kriel [2011] ZASCA 113; 2012 (1) SACR 1 (SCA) paras 11-12; S v
Smith (above) paras 2-3; S v AD [2011] ZASCA 215 paras 3-6.
21 R v Sillas 1959 (4) SA 305 (A) at 312F-H.
22 At 309F-312H and 313E-315E. See also Oudebaaskraal (Edms) Bpk v Jansen Van Vuuren 2001
(2) SA 806 (SCA) at 811H; and Naude en andere v Heatlie en andere; Naude en andere v Worcester-
Oos Hoofbesproeiingsraad 2001 (2) SA 815 (SCA)  at 820I-821A.
23 Gonya v S [2016] ZASCA 34 paras 5-10.

matter is properly before us. This court in Gonya v S,24 considered the transitional
provisions (s 52) of the Superior Courts Act in relation to pending matters. It held that
„proceedings pending in any court‟ as referred to in s 52 of the Act must include
criminal proceedings.25 Accordingly, this court found on the basis of the date of the
commencement of the trial (which was before the promulgation of the Superior
Courts Act) that the case had been a matter pending between the two Acts.26
Whether the leave given in this case was that for which provision was made under
the Supreme Court Act or the „special leave‟ of the new Superior Courts Act, in the
words of Ponnan JA in S v Van Wyk & another,27 „the higher threshold‟ of „special
circumstances‟ has been met so as to justify leave to appeal to this court being
granted: in this case it makes no difference, either way.

[20] Changes in the legislation and court rules governing court procedure and the
consequential intertemporal arrangements have always presented challenges to our
courts.28 When examining transitional provisions relating to questions of court
procedure, the starting point is to look at when the date on which proceedings
commenced.29 As mentioned above, in this instance we are dealing with petitions
proceedings, thus the appropriate point to look at to determine whether proceedings
are pending, is the point from which the petition proceedings themselves were
lodged.30

[21]  The decision of the high court against which the appeal in this case is
concerned is the dismissal of an appeal to it of its decision to refuse a petition to
appeal. This court cannot, at this stage, make an order pertaining to how the
question of sentence should be dealt with. It would have been in the interests of the
State, the appellant and society if we could have set the sentence aside and directed
that the magistrate consider the question of sentence afresh. Somewhat

24 Gonya v S [2016] ZASCA 34 paras 5-10.
25 Paragraph 7.
26 Ibid.
27 S v Van Wyk & another [2014] ZASCA 152; 2015 (1) SACR 584 (SCA).
28 In fact, the very first case that began the business of this court on 4 June 1910 arose out of similar
circumstances.  When the Appellate Division (as this court was then called) assumed the appellate
jurisdiction for the newly establish Union of South Africa‟s Supreme Courts, it succeeded the Judicial
Committee of the Privy Council. See Fichardt Ltd v Faustman 1910 AD 1.
29 Fichardt Ltd v Faustman (above) at 3. See also, for an analogous example, Magistrates‟ Court rule
69.
30 Ibid.

incongruously, for reasons that follow, the appeal must be directed to the high court
for it to consider, once again, the question of sentence.31 The principle has been
well-established in this court on the basis of the legislation as it currently stands.  I
refer to the following, in particular: S v Essop;32 S v Mndebele;33 S v Dipholo;34  S v
Van Wyk & another;35 S v Tonkin;36 S v Matshona;37 S v Slinger;38 S v Kriel; 39 S v
Smith;40 S v AD41 and S v Khoasasa.42

[22] The legally required process may be distressingly convoluted but in the
absence of a statutory amendment to the process of appeals, the correct order is to
remit the matter back to the high court to hear the appeal when finding that the high
court ought to have granted the appellant leave to appeal to it against the trial court‟s
sentence. The high court could then, in turn, remit the matter to the regional court for
sentencing afresh, after setting the sentence aside. The high court could also decide,
depending on the facts and submissions before it when hearing the appeal, to
substitute its own sentence there and then. How the appeal is best to be dealt with is
a matter for the high court to decide. As Brand JA lamented in Tonkin, the process is
„cumbersome and wasteful of both time and money‟, with obvious injustices.43

[23] The following order is made:
1. The appeal is upheld.
2. The order of the court below refusing leave to appeal is set aside and
replaced with the following:
„Leave to appeal to the Gauteng Local Division of the High Court,
Johannesburg   is granted.‟

31 Para 39.
32 Essop v S [2016] ZASCA 114.
33 Mndebele v S [2016] ZASCA 7.
34 Dipholo v S [2015] ZASCA 120.
35 S v Van Wyk (above).
36 S v Tonkin [2013] ZASCA 179; 2014 (1) SACR 583 (SCA).
37 S v Matshona [2008] ZASCA 58; 2013 (2) SACR 126 (SCA).
38 Slinger v S [2013] ZASCA 197.
39 S v Kriel (above).
40 S v Smith (above).
41 AD v S ZASCA 215.
42 S v Khoasasa [2002] ZASCA 113; 2003 (1) SACR 123 (SCA).
43 S v Tonkin [2013] ZASCA 179; 2014 (1) SACR 583 (SCA), followed and approved in S v Van Wyk
(above) para 39.

_________________________
N P Willis
Judge of Appeal

APPEARANCES:

For the Appellant:
M Kolbe SC
Instructed by:
Strauss De Waal Attorneys, Benmore
Phatsoane Henney Attorneys, Bloemfontein

For the Respondent:
N Muller
Instructed by:
The Director of Public Prosecutions, Johannesburg
The Director of Public Prosecutions, Bloemfontein