Mohlaloga v S (1028/2023; 1112/2023) [2025] ZASCA 115 (8 August 2025)

Case Note

Mohlaloga v The State (Case numbers 1028/2023 and 1112/2023) [2025] ZASCA 115 (8 August 2025)

Reportability

Although the judgment is marked Not Reportable, it addresses the interpretation of section 17(2)(f) of the Superior Courts Act 10 of 2013 governing reconsideration of decisions refusing special leave to appeal. The judgment is significant because it clarifies the threshold of “exceptional circumstances” required for such reconsideration applications and affirms the appellate court’s deference to sentencing discretion where no material misdirection is shown. These issues frequently arise in criminal appeals and thus possess precedential value beyond the immediate litigants.

Cases Cited

No external authorities were expressly cited in the available text of the judgment. The court decided the matter primarily on statutory interpretation and its own prior procedural rulings.

Legislation Cited

Superior Courts Act 10 of 2013, sections 17(2)(d) and 17(2)(f)
Prevention of Organised Crime Act 121 of 1998, section 4

Rules of Court Cited

None mentioned in the judgment.

HEADNOTE

Summary

This Supreme Court of Appeal matter stems from large-scale fraud perpetrated on the Agri Broad Based Black Economic Empowerment Fund administered by the Land Bank. The appellant, a sitting Member of Parliament, had been convicted in the Regional Court of fraud and money-laundering, and sentenced to an effective 20 years’ imprisonment. His appeal to the High Court failed, leading him to seek special leave from the Supreme Court of Appeal.

Special leave to appeal against sentence was granted, but leave on conviction was refused. The appellant then invoked section 17(2)(f) of the Superior Courts Act, asking the President of the Supreme Court of Appeal to refer the refusal of leave for reconsideration. The President referred the matter to the Court for possible variation and directed that the sentence appeal be heard simultaneously.

The Court held that the appellant failed to show exceptional circumstances justifying reconsideration of the refusal of leave on conviction. On the merits of sentence, the Court found no material misdirection and concluded that the effective 20-year term was proportionate to the seriousness of the offences and the appellant’s abuse of public office. The reconsideration application was struck from the roll and the sentence appeal dismissed.

Key Issues

The first issue was whether the appellant demonstrated the “exceptional circumstances” contemplated in section 17(2)(f) so as to warrant reconsideration of the earlier refusal of leave to appeal on conviction. The second issue was whether the Regional Court misdirected itself in imposing two concurrent 15-year sentences, resulting in an effective term of 20 years’ imprisonment.

Held

The Court unanimously held that no exceptional circumstances existed. The application for reconsideration was accordingly struck from the roll. Regarding sentence, the Court found the regional magistrate exercised his discretion properly, that the offences were serious and involved a breach of the public trust, and that the sentence was neither shocking nor disproportionate. The sentence appeal was therefore dismissed.

THE FACTS

The appellant, Manyaba Rubben Mohlaloga, then Chairperson of Parliament’s Portfolio Committee on Agriculture, together with co-accused including a senior Department of Agriculture official and private associates, orchestrated a fraudulent scheme to misappropriate funds from the AgriBBBEE Fund.

Despite a clear prohibition in the Fund’s Operational Manual against grants to serving politicians, the conspirators prepared a falsified application in the name of a youth-empowerment entity. Acting outside the approved procedures—no due diligence, no business plan and no approval by the National Advisory Panel—an amount of R6 million was paid out of the Fund in January 2008 at the direction of the acting CEO of the Land Bank. The money was diverted to purchase a farm for the benefit of the conspirators, abandoning any genuine empowerment purpose.

Following an audit that exposed the absence of documentation, the conspirators created a false paper trail. Criminal proceedings ensued. The Regional Court convicted the appellant of fraud and money-laundering and sentenced him to 15 years on each count, five years of the second sentence to run consecutively, giving an effective 20-year term. The High Court dismissed his subsequent appeal on both conviction and sentence.

THE ISSUES

First, the Court had to decide whether the statutory requirements of section 17(2)(f) of the Superior Courts Act were satisfied: specifically, whether the appellant established exceptional circumstances justifying a reconsideration of the earlier refusal of leave to appeal on conviction.

Secondly, if the Court entertained the sentence appeal (for which leave had been granted earlier), it had to determine whether the sentencing court misdirected itself either in assessing the gravity of the offences or in ordering partial concurrency, and whether the resultant effective sentence was disturbingly inappropriate.

Thirdly, the broader question arose whether public-office holders who exploit empowerment funds for personal gain merit enhanced punitive responses, and how appellate courts should balance deterrence, retribution and rehabilitation in such circumstances.

ANALYSIS

The Court began by reaffirming that the power of reconsideration provided in section 17(2)(f) is extraordinary and must be exercised sparingly. The phrase “exceptional circumstances” imports a stringent test: an applicant must show more than that another court might come to a different conclusion—there must be a demonstrable miscarriage of justice or a fundamental procedural irregularity.

Applying this test, the Court found that the appellant’s grounds—re-asserting factual disputes resolved against him by two courts—did not meet the threshold. Allegations that the High Court failed to engage properly with the evidence were unfounded; the record showed meticulous treatment of all material facts. The appellant thus failed at the first hurdle, and the reconsideration application was struck from the roll.

Turning to sentence, the Court emphasised that interference is justified only if the trial court committed a material misdirection or the sentence is so unreasonable as to induce a sense of shock. The regional magistrate had carefully weighed the appellant’s personal circumstances, the substantial prejudice to the public, and the aggravating feature of abusing parliamentary stature. Given the seriousness of the offences and the need for deterrence, the effective 20-year imprisonment was not excessive. Consequently, the appeal against sentence was dismissed.

REMEDY

The application for reconsideration of the refusal of special leave to appeal on conviction was struck from the roll. The appeal against sentence was dismissed, leaving intact the effective 20-year term of imprisonment imposed by the Regional Court and affirmed by the High Court.

LEGAL PRINCIPLES

The judgment affirms that reconsideration under section 17(2)(f) of the Superior Courts Act is an extraordinary remedy, available only in truly exceptional cases where grave injustice would otherwise result. Mere dissatisfaction with previous rulings or reiteration of factual disputes does not suffice.

On sentencing, the Court reiterated the principle that an appellate tribunal may not tamper with a sentence unless the trial court (a) committed a material misdirection on fact or law, or (b) imposed a sentence startlingly inappropriate in relation to the offence, the offender and societal interests. Abuse of public office and misappropriation of empowerment funds are aggravating factors warranting severe punishment.

Finally, the case underscores the judiciary’s commitment to protecting public funds designated for socio-economic advancement and to holding elected officials to the highest standards of probity.