THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 775/2023
In the matter between

ISAAC TEBOGO DITLHAK ANYANE APPELLANT


and

THE STATE RESPONDENT

Neutral citation: Ditlhakanyane v The State (775/2023) [2025] ZASCA 90 (12 June
2025)
Coram: MOCUMIE, NICHOLLS and BAARTMAN JJA and MUSI and
WINDELL AJJA
Heard: 20 February 2025
Delivered : This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal website,
and released to SAFLII. The date and time for hand down is deemed to be 12 June
2025 at 11h00 .
Summary: Practice and procedure – special leave to appeal – s 17(2) (f) of the
Superior Courts Act 10 of 2013 .
Appeal – application for special leave to appeal to the SCA – requirements for grant
thereof – test – exceptional circumstances.

2

Conviction on s 2(1) (e) and ( f) Prevention of Organised Crime Act 121 of 1998 (POCA)
– whether unfair duplication of convictions – conviction only on s 2(1)( e) – same
evidence test applied – princip les related to the conviction on s 2 (1)(e) and ( f) re-
affirmed – Section 322(6) of the Criminal Procedure Act 51 of 1977 applied - sentence
set aside and substituted.

3


ORDER


On appeal from: Gauteng Division of the High Court, Johannesburg (Mo osa J,
Senekal and Jordaan AJJ concurring sitting as court of appeal):
1 The application for reconsideration in terms of s 17(2) (f) of the Superior Courts
Act 10 of 2013 , is granted .
2 The appeal is partially upheld, as set out hereafter.
3 The order of the full court is set aside and substituted with the following:
‘(i) The conviction on count 1, contravention of s 2(1)(f) of the Prevention of
Organised Crime Act 121 of 1998 (POCA) , and the sentence imposed
on this count are set aside.
(ii) The conviction on count 2, contravention of s 2(1)(e) of POCA is
confirmed.
(iii) The accused is sentenced to 30 (thirty) years imprisonment in respect of
count 2 antedated to 17 June 2015 .’

JUDGMENT


Mocumie JA ( Nicholls and Baartman JJA and Musi and Windell AJJA
concurring):

[1] This is an application in terms of s 17(2)( f) of the Superior Courts Act 10 of 2023
(the Superior Courts Act), for the reconsideration of a dismissal of a n application for
special leave by two judges of this Court . The applicant, Mr Isaac Ditlhakanyane
(Mr Ditlhakanyane) appealed against the convictions and long term s of imprisonment
imposed on him by the Gauteng Division of the High Court, Satchwell J (the trial court) ,
on 17 June 2015, which the full court subsequently confirmed on 10 October 2023 .
His petition for special leave to appeal was dismissed by this Court . Discontented with
the dismissal of his petition , he brought this application.

[2] At the relevant time s 17(2)( f) read:
‘The decision of the majority of the judges considering the application referred to in paragraph
(b) …to refuse the application shall be final: Provided that the President of the Supreme Court
4

of Appeal , may in exceptional circumstances , whether of his or her own accord or on
application filed within one month of the decision, refer the decision to the court for
reconsideration and, if necessary, variation. (Emphasis added.) It is on this basis that the
President referred the matter to this Court .1

[3] The Constitutional Court in Liesching and Others v The State (Liesching II)2
stated that:
‘As with section 18(1) , section 17(2)(f) prescribes a departure from the ordinary course of an
appeal process. Under section 17 , in the ordinary course, the decision of two or more Judges
refusing leave to appeal is final. However, section 17(2)(f) allows for a litigant to depart from
this normal course, in exceptional circumstances only, and apply to the President for
reconsideration of the refusal of leave to appeal .3(Emphasis added.)

[4] In Avnit v First Rand Bank Ltd4 this Court had regard to what exceptional
circumstances mean in the context of s 17(2) (f). It concluded that it is fact specific and
that ‘… in the exercise of the discretion vested in the President the overall interests of
justice will be the finally determinative feature for the exercise of the President’s
discretion’.

[5] In Masiteng v Minister of Police5, relying on Liesching II , this Court stated:
‘The threshold for granting an application in terms of s 17(2)(f) is therefore high. The applicant
has to satisfy this Court that the circumstances are truly exceptional to hear this matter again
after the application for leave was dismissed and the petition to this Court was
unsuccessful .’6(Emphasis added.)

[6] I now consider whether Mr Ditlhakanyane has established ‘exceptional
circumstances’ which justify this Court’s attention for the second time.

1 Although not applicable in this application, i t is important to note that s 17(2)( f) was a mended in 2023
and replaced ‘exceptional circumstances ’ with ‘where grave failure of justice would otherwise result ’ or
‘the administration of justice may be brought into disrepute. ’
2 Liesching and Others v S [2018] ZACC 25; 2018 (11) BCLR 1349 (CC); 2019 (1) SACR 178 (CC);
2019 (4) SA 219 (CC).
3 Ibid para 136.
4 Avnit v First Rand Bank Ltd [2014] ZASCA 132 ; 2014 JDR 2014 (SCA) ; See also Hendrik Petrus
Hough v Mzubanzi Sisilana and others [2018] ZASCA 04; Beadica 231 CC v Sale’s Hire CC [2020]
ZASCA 76; 2020 JDR 1281 (SCA).
5 Masiteng v Minister of Police [2024] ZASCA 165; 2024 JDR 5264 (SCA) .
6 Ibid para 20.
5

Mr Ditlhakanyane submitted that ‘exceptional circumstances’ existed because
currently there are conflicting judgments of this Court as to whether a conviction in
terms of both s 2(1) (f) (count 1) and s 2(1) (e) (count 2) of the Prevention of Organised
Crime Act 121 of 1998 ( POCA ), based on the same set of facts and or evidence
amounts to a splitting of convictions. This is a narrow question or point of law
contemplated by the legislature under s 17(2)( f) which qualifies as an ‘exceptional
circumstance’. He further submitted that it was not only ‘in the interests of justice’ for
him but for the prosecution and the society at large for the appeal to be reconsidered
on this narrow question or point of law.

[7] This entails a determination on the facts of this matter whether an accused
person can be convicted on contravening both s 2(1) (e) and (f) of POCA, where
evidence of the same activities was led to prove both counts. The subsidiary issue is
whether, if this Court finds that there was a duplication of convictions, it is at large to
interfere with the sentence imposed by the full court on the remaining conviction.

[8] The factual matrix against which these issues fall to be determined is briefly as
follows. Mr Ditlhakanyane and his erstwhile co -accused were indicted and
subsequently convicted in the trial court . On 17 June 2015, he was sentenced to an
effective period of 50 years imprisonment. He appealed against the convictions and
sentences imposed. On 24 October 2022, the appeal was heard by the full court, which
dismissed the appeal against the convictions. However, it reduced Mr Ditlhakanyane’s
sentence from a cumulative 50 years to 40 years imprisonment.

[9] The state alleges that Mr Ditlhakanyane was part of a criminal enterprise which
focused on looting the South African Post Bank. The modus operandi in the
commission of the crimes was as follows :
(a) Compromised and corrupt Post Office employees were used as ‘agents’ who
would identify bank accounts from which the members of the criminal enterprise could
steal;
(b) Once the agents had identified the accounts with a sufficient credit balance,
they would forward the information to the provincial ringleader;
6

(c) The ringleader would then procure various documents, namely forged
identification documents – either a South African identity book or a passport (Lesotho,
Mozambique or Nigeria). The ringleader would also co -opt a person (‘striker’ or
‘runner’) who was prepared to falsely claim to be the account holder of the targeted
account;
(d) The ‘runner’ would then present the false documents to the Post Office Bank
with demands for monies from genuine accounts.

[10] The evidence led during the trial showed that Mr Ditlhakanyane managed and
participated in the criminal enterprise which preyed upon account holders at the South
African Post Office. He played a crucial role in obtaining information regarding account
holders’ accounts and determining the amount of money available in the said
accounts. He was also the central figure who forged identity documents and passports
to use in the scheme. He and his erstwhile co -accused also obtained false bank cards.
These for ged documents were presented at different Post Office branches and , with
the assistance of tellers and employees of the Post Bank, monies were withdrawn from
the targeted Post Bank accounts.7

[11] Cellular phone data showed that the Mr Ditl hakany ane communicated with the
Post Office employees and specifically with the employees involved in processing the
disputed transactions on the day that the transactions occurred. The trial court also
found that the incriminating evidence indicated that the applicant along with his
erstwhile co -accused was, to a greater or lesser extent, connected to the racketeering
enterprise; that each of them associated th emselves with its objectives; that together,
they had a common purpose to promote its aims and objectives through an organised
pattern of racketeering activity.

[12] Mr David Motsoane (Mr Motsoane) testified as a s 204 witness8 in relation to
specified offences, namely theft, fraud, money laundering and managing a criminal

7 Ditlhakanyane and Others v S [2023] ZAGPJHC 93 .
8 Section 204 of the CPA, which is headed ‘Incriminating evidence by a witness for prosecution’
provides:
‘(1) Whenever the prosecutor at criminal proceedings informs the court that any person called as a
witness on behalf of the prosecution will be required by the prosecution to answer questions which may
incriminate such witness with regard to an offence specified by the prosecutor - the court, if satisfied that
such witness is otherwise a competent witness for the prosecution, shall inform such witn ess.
7

enterprise under POCA. He stated that he was recruited by Mr Ditlhakanyane. The
latter was an active participant in the criminal enterprise. He, together with
Mr Ditlhakanyane , as well as their erstwhile accused number 12 were the
masterminds. He pleaded guilty in the Pretoria Commercial Crimes Court for his role
in the criminal enterprise. He was subsequently sentenced to various terms of
imprisonment which were ordered to run concurrently, culminating in a cumulative
sentence of ten years imprisonment.

[13] Mr Motsoane implicated Mr Ditlhakanyane extensively. His evidence showed
that Mr Ditlhakanyane played an active role in managing the criminal enterprise and
participating in it. Despite the overwhelming evidence against him , direct and
circumstantial , that he was linked with the other members of the syndicate/criminal
enterprise, Mr Ditlhakanyane elected not to testify. The trial court convicted him of 26
counts of theft, fraud, participating in the activities of a criminal enterprise
(racketeering) and managing a racketeering enterprise and sentenced him
accordingly . However, on appeal his sentence in respect of count 2, was reduced to
20 years imprisonment which was to run concurrently with that in count 1. Thus, he
was partially successful before the full court. In this Court, he now appeals the
convictions and sentences on both counts.

[14] Mr Ditlhakanyane was indicted with, among others , contravention of s 2 of
POCA. Count 1 is contravention of s 2(1) (f) of POCA provides that:
‘Any person who -
(f) manages the operation or activities of an enterprise and who knows or ought
reasonably to have known that any person, whilst employed by or associated with that
enterprise, conducts or participates in the conduct, directly or indirectly, of such enterprise’s
affairs through a pattern of racketeering activity.’

[15] Count 2 is a contravention of s 2(1) (e). It stipulates:
‘Any person who -
(e) whilst managing or employed by or associated with any enterprise, conducts
or participates in the conduct, directly or indirectly, of such enterprise’s affairs through a
pattern of racketeering activity.’

8

[16] To ascertain whether a duplication of convictions has occurred is not always a
clear -cut task. This Court has had to deal with duplication of convictions in a number
of cases , yet as this case clearly demonstrates, the uncertainty still lingers.9

[17] In the judgment , the trial court identified and acknowledged the discrepancies
in the evidence for the state. It , however held that those discrepancies were not
material nor relevant when viewed against the overwhelming evidence which
supported a conviction on both ss 2 (1)(e) and (f) of POCA. It concluded that the state
had proved its case beyond reasonable doubt regardless of those discrepancies. This
was particularly so because Mr Ditlhakanyane chose not to testify in the face of
damning evidence against him by his erstwhile partner -in-crime, his accomplice and s
204 witness, Mr Motsoane. These findings of facts are unassailable.

The law
[18] South African law prohibits duplication of convictions but not the splitting of
charges. Section 83 of the CPA provides:
‘If by reason of any uncertainty as to the facts which can be proved or if for any other reason,
it is doubtful which of the several offences is constituted by the facts which can be proved, the
accused may be charged with the commission of all or any such offences, and any number of
such charges may be tried at once, or the accused may be charged in the alternative with the
commission of any number of such offences.’

[19] Du Toit et al Commentary on the Criminal Procedure Act10 summarises the
effect of s 83 in the following manner:
‘Section 83 authorizes the inclusion in the charge sheet of all the charges that could possibly
be supported by the facts, even if they overlap to such an extent that convictions on all or on
some of the counts would amount to a duplication of convictions . . . An accused may thus not
object, at the beginning of the trial, to the charge sheet or indictment on the basis that it
contains a duplication of charges. Such a duplication will occur where more than one charge
is supported by the same culpable fact . . . In short, it is the court’s duty to guard against a

9 See Michael Miller ‘ Two for one – Duplicate convictions for one crime’ February 2013.De Rebus ;
Delano Cole Van Der Linde ‘Managing and Participating in a Criminal Enterprise Under Poca:
Duplication of Convictions? A discussion of the Conflict Between Prinsloo v S and S v Tiry ’ (2022) 139
SALJ .
10 E Du Toit et al Commentary on the Criminal Procedure Act (loose -leaf service 38, 2007) at 14 -5.
9

duplication of convictions and not the prosecutor’s duty to refrain from the duplication of
charges.’11

[20] Section 336 of the Criminal Procedure Act 51 of 1977 (the CPA), stipulates:
‘Where an act or an omission constitutes an offence under two or more statutory provisions or
is an offence against a statutory provision and the common law, the person guilty of such act
or omission shall, unless the contrary intention appears, be liable to be prosecuted and
punished under either statutory provision or, as the case may be, under the statutory provision
of the common law, but shall not be liable to more than one punishment for the act or omission
constituting the offence.’

[21] In S v Eyssen12 this Court explained the essential difference between the
offence s in ss (f) and (e) of POCA as follows:
‘The essence of the offence in subsec (e) is that the accused must conduct (or participate in
the conduct) of an enterprise's affairs. Actual participation is required (although it may be direct
or indirect). In that respect the subsection differs from sub sec (f), the essence of which is that
the accused must know (or ought reasonably to have known) that another person did so.
Knowledge, not participation, is required. On the other hand, subsec (e) is wider than
subsec (f) in that subsec (e) covers a person who was managing, or employed by, or
associated with the enterprise, whereas subsec (f) is limited to a person who manages the
operations or activities of an enterprise.’13

[22] In S v BM ,14 this Court remarked that:
‘It has been a rule of practice in our criminal courts since at least 1887 that ‘where the accused
has committed only one offence in substance, it should not be split up and charged against
him in one and the same trial as several offences ’. The test is whether, taking a common
sense view of matters in the light of fairness to the accused, a single offence or more than one
has been committed. The purpose of the rule is to prevent a duplication of convictions on what

11 See in this regard S v Grobler en ‘n Ander 1966 (1) SA 507 (A) at 513E -H (per Rumpff JA) and at
522E -523E (per Wessels JA). See also S v Gaseb and Others 2001 (1) SACR 438 (NMS) at 441 A-
442B and 465 F-466D. In the latter case the accused persons were charged with four counts of rape,
the wording of all the charges being identical. Faced with an argument based on duplication of
convictions, the Namibia Supreme Court upheld all the convictions, holding that e ach of the four
appellants had had sexual intercourse with the complainant without her consent and that each had
assisted the three others in turn in the rapes committed by them.
12S v Eyssen [2008] ZASCA 97; [2009] 1 All SA 32 (SCA); 2009 (1) SACR 406 (SCA) .
13 Ibid para 5.
14 S v BM [2013] ZASCA 160; 2014 (2) SACR 23 (SCA).
10

is essentially a single offence and, consequently, the duplication of punishment.’15(Emphasis
added.)

[23] In Tiry and Others v S (Tiry)16, Messers Tiry and Sangweni were convicted on
the same evidence on both counts c ontravention of s 2(1)(e) and (f). This Court held:17
‘In simple terms, following the distinction identified in Eyssen , s 2(1)(e) catches the manager
who is involved actively in the conduct of the enterprise through a pattern of racketeering
activity, whilst s 2(1)(f) catches the manager whose hands are clean, but who knows or ought
reasonably to have known that the enterprise was being conducted through a pattern of
racketeering activity. Knowledge of what subordinates are doing, or ignorance, where there
ought reasonably to be knowledge, suffices to attract liability .
…
Once that distinction is recognised, it appears that charging and convicting someone of both
offences may well involve an impermissible splitting of charges, as held in the minority
judgment in S v Prinsloo and Others . The fact that the State relied on precisely the same facts
for both charges immediately suggests that there was an improper splitting of charges. What
is more, Mr Tiry’s active involvement in the conduct of the enterprise brought him squarely
within s 2(1)(e). There was no need to invoke s 2(1)(f). However, his counsel did not take this
point, nor have we had argument on the question of splitting of charges.’

[24] In S v Whitehead18 this Court stated as follows:
‘It is a fundamental principle of our law that an accused [person] should not be convicted and
sentenced in respect of two crimes when he or she has committed only one offence.’19
. . . .
In contesting multiple convictions it is often submitted that they are premised on the same set
of facts. This is, in fact, the so -called ‘evidence test’ sometimes applied by the courts in
determining whether or not there is a duplication of convictions. T his test enquires whether
the evidence necessary to establish the commission of one offence involves proving the
commission of another offence. In this regard, Bristowe J, in the case of R v Van Der Merwe
1921 TPD 1 at 5 pointed out that “…if the evidence necessary to prove one criminal act
necessarily involves evidence of another criminal act, those two are to be considered as one

15 Ibid para 3
16 Tiry and Others v S [2020] ZASCA 137; [ 2021] 1 All SA 80 (SCA) ;2021 (1)SACR 349 (SCA).
17 Ibid paras 110 -111.
18 S v Whitehead [2007] ZASCA 171; [2007] SCA 171 (RSA); [2008] 2 All SA 257 (SCA); 2008 (1) SACR
431 (SCA) .
19 Ibid para 10.
11

transaction. But if the evidence necessary to establish one criminal act is complete without the
other criminal act being brought in at all then the two are separate crimes” (Emphasis added)’20

[25] In Prinsloo v S (Prinsloo)21, the minority judgment , which was subsequently and
unanimously confirmed in Tiry22 this Court stated:
‘ The essence of the offence in (e) is participation in the affairs of the enterprise. The crux of
(f), on the other hand, is knowledge, not participation. Or as Cloete JA formulated it, the
essence of ( f) is that “the accused must know (or ought to have known) that another person
did so”’.23

. . . .

‘Logic dictates that participation in racketeering activities will always include knowledge of
those activities. While one can have knowledge without participation, the converse is not
possible. Of necessity, the conviction of a manager under (e) must involve a criminal act in
terms of (f). In order to participate in racketeering activities for purposes of (e), the wrongdoer
must have knowledge, proof of which in itself will amount to proof of the offence under (f). It is
true that the elements of the two o ffences are in certain respects different, but that in itself, is
no answer to an objection of duplication where, as in this case, the greater necessarily
includes the lesser. An accused convicted of murder on the basis of dolus eventualis will
almost inevitably also be guilty of culpable homicide because the wider concept of negligence
will of necessity embrace the narrower concept of legal intent. Yet, no one will think of
convicting the accused of both. In so far as S v De Vries and others 2009 (1) SACR 613 (C)
para 397 -398 goes the other way, it was in my view wrongly decided.’ 24(Emphasis added .)

[26] It is clear from the above authorities that the court must use a common sense
approach in determining whether there has been a duplication of convictions. In order
to reach that conclusion , the court must examine whether the evidence needed to
sustain a conviction on the one count is exactly the same as the evidence needed to
sustain a conviction on another count. If the answer to that is in the affirmative then
there is a duplication of convictions.

20 Ibid para 39 .
21 Prinsloo v S [2015] ZASCA 207; [2016] 1 All SA 390 (SCA); 2016 (2) SACR 25 (SCA) .
22 Op cit fn 1 6 para 111.
23 Op cit fn 21 para 396.
24 Op cit fn 21 para 398.
12


[27] It is common cause that the trial court and the full court did not address the
issue of duplication of convictions at all. In this regard it made a fundamental mistake.

[28] In analysing whether Mr Ditlhakanyane was guilty of managing the operations
of the enterprise through a pattern of racketeering activities, the trial court found , in
essence , that he was central to the enterprise . He gave instructions and received
information on the accounts targeted and shared the same with the tellers who then
processed the fraudulent withdrawal s. He worked extremely hard as the cellphone
communication and constant travel throughout the day indicated. He used different
phones to communicate with different tellers to obtain account details and saved those
account details to process the withdrawals . He was closely linked in time and place to
the fraudulent transactions. He was the constant role player throughout the existence
of the enterprise. All this confirm ed his centrality and leadership in the management
of the enterprise .

[29] It is clear from all the evidence which the trial court relied upon to come to the
conclusion that Mr Ditlhakanyane was guilty of managing and participating in the
enterprise, that it did not draw any distinction between the evidence used to convict
him of the respective counts. The trial court incorrectly used the terms ‘management’
and ‘participation’ interchangeably and as synonyms in the judgment. The full court
said nothing about this.

[30] Viewing the evidence holistically, one can conclude that the trial court relied
upon the whereabouts of Mr Motsoane in relation to his erstwhile accomplices, to
convict Mr Ditlhakanyane on both counts. The full court did not interrogate the
possibility of a duplication of convictions. It is therefore safe to conclude that it
assumed that the trial court was correct. In these circumstances, considering the
evidence and findings in respect of both counts from a co mmon -sense point of view,
it is clear tha t the two convictions are premised on the same set of facts. This is
evinced by the evidence of Mr Motsoane stating first, how the activities were planned
and how he was recruited to form part of the syndicate. Second, and in the same
breath, how Mr Ditlhakanyane then participated in the commission of the offences in
13

person to the point where he was arrested in delicto in flagrante whilst committing one
of the offences at one of the Post Offices they targeted.

[31] It follows therefore that in these circumstances, based on ‘the [same] evidence
test’25, a conviction on both (e) and (f) offends against the duplication of convictions
rule. Mr Ditlhakanyane’s active involvement in the conduct of the enterprise brought
him squarely within s 2(1) (e): the manager who is involved actively in the conduct of
the enterprise through a pattern of racketeering activity . It follows that the appeal
against the conviction on count 1, contravention of s 2(1) (f) ought to succeed.

[32] In sum, this Court in Tiry has endorsed and re -affirmed the principles set out in
the minority judgment of Prinsloo that a conviction on both s 2 (1)(e) and (f) based on
the evidence test, thus relying on the same evidence to convict an accused person, is
a duplication of convictions. As this Court stated unequivocally in S v BM , it is a
common sense view of matters in the light of fairness to the accused and to pre vent a
duplication of convictions on what is essentially a single offence and, consequently,
the duplication of punishment . To find otherwise would be unfair to Mr Ditlhakanyane,
whose fair trial rights are enshrined in s 35(3) of the Constitution.

[33] The issue of sentence remains. This Court in Maila v S 26 reaffirmed that the
determination of sentence is principally a matter of the trial court’s discretion. And that
interference with the sentence imposed should only happen when the trial court’s
discretion is regarded as having been unreasonably exercised. It is also trite that the
power of an appellate court to interfere with a sentence imposed by a lower court is
limited. In S v Bogaards 27, the Constitutional Court stated thus, as follows:
‘It [the Appellate court] can only do so where there has been an irregularity that results in a
failure of justice; the court below misdirected itself to such an extent that its decision on
sentence is vitiated; or the sentence is so disproportionate or sh ocking that no reasonable
court could have imposed it.’28


25 As explained in S v BM Op cit fn 14 para 3 , this test enquires whether the evidence necessary to
establish the commission of one offence involves proving the commission of another offence.
26 Maila v S [2023] ZASCA 3; 2023 JDR 0130 (SCA) para 43.
27 S v Bogaards [2012] ZACC 23; 2012 BCLR 1261 (CC); 2013 (1) SACR 1 (CC).
28 Ibid para 41 .
14

[34] Counsel for Mr Ditlhakanyane argued that the sentence imposed by the full
court, replacing that of the trial court, although reduced from 50 years to 40 years, was
startingly inappropriate and disproportional to the offence committed ie only one count
of contravention of s 2(1) (f). The term of imprisonment imposed by the full court
induced a sense of shock which entitles this Court to interfere and impose an
appropriate sentence . It was submitted that the full court ignored similar cases
including Tiry, Dos Santos and another v S,29 De Vries v S,30 Prinsloo and Blignaut v
S.31

[35] The trial court imposed the following sentences relevant to this application:
Count 1 : 30 years and count 2 : 20 years , 10 years of which was to run concurrently
with the sentence imposed in respect of count 1. The full court reduced the effective
sentence of 50 years imprisonment by the trial court to 40 years imprisonment.

[36] It follows logically that once this Court has found that Mr Ditlhakanyane should
only have been convicted of one count, contravention of s 2(1) (e), automatically, the
30 years imprisonment in respect of count 1 falls away. What then remains for
consideration is the sentence imposed in respect of count 2: 20 years imprisonment
of which 10 years is to run concurrently with the 30 years imposed in count 1. Without
coun t 1, does it mean that the original 20 years must be confirmed? Can this Court,
increase the sentence if it is of the view that 20 years imprisonment is not appropriate
under the circumstances?

[37] This issue was addressed extensively. Counsel for Mr Ditlhakanyane submitted
that the trial court took into account all relevant factors. The state did not cross -appeal
the sentence. Therefore, this Court cannot exercise its discretion to interfere , absent
a cross -appeal by the state. It was submitted that 20 years imprisonment was fair
under the circumstances.


29 Dos Santos and another v The State [2010] ZASCA 73; 2010 (2) SACR 382 (SCA); [2010] 4 All SA
132 (SCA) .
30 De Vries v The State [2011] ZASCA 162; 2012 (1) SACR 186 (SCA); [2012] 1 All SA 13 (SCA).
31 Blignault v S [2020] ZAECGHC 7.
15

[38] The Preamble to POCA highlights the growth of organised crime, and money
laundering which infringes upon the rights of citizens and threatens economic stability .
It recognises the importance of preventing individuals from benefiting from the fruits of
unlawful activities. That is why the legislature has introduced measures to combat
these crimes by, inter alia, setting high penalties and long terms of imprisonment to
curb the recurrence of these crimes.

[39] There is no doubt that the contravention of s 2(1)(e) as part of organised crime,
is a serious offence which cuts at the heart of the economy of this country. Had the
trial court had to deal with only one count, it would in all probability have been alive to
this. After full argument on sentence, the parties were granted leave to submit
supplementary heads of argument in this regard. Counsel for Mr Ditl hakanyane
submitted extensive heads of argument for which we are indebted. Counsel for the
state did not file any, which leaves much to be desired since the issue of sentence
became critical once the conviction on one count fell away.

[40] The general rule is that when an appellate court envisages increasing the
sentence imposed, an accused person must be forewarned to address the issue
adequately and weigh their options. In the supplementary heads of argument on
whether this Court may inc rease the sentence imposed in respect of count 2, counsel
for Mr Ditlhakanyane conceded that there is no doubt that s 322(6) of the CPA
empowers a court of appeal to impose a more severe sentence than the sentence
imposed by the trial court where the tr ial court committed a material error. However,
the submission was made that such an appeal must be properly before this Court,
arguing that there was no such appeal before this Court.

[41] Section 322(6) of the CPA , it was argued, must be read in the context of s 32232
as a whole. The plain reading of the section, counsel submitted , reveals that the

32 Section 322 of the CPA: Powers of a court of appeal:
(1) In the case of an appeal against a conviction or of any question of law reserved, the court of appeal
may- (a) allow the appeal if it thinks that the judgment of the trial court should be set aside on the ground
of a wrong decision of any question of l aw or that on any ground there was a failure of justice; or (b)
give such judgment as ought to have been given at the trial or impose such punishment as ought to
have been imposed at the trial; or (c) make such other order as justice may require: Provided that,
notwithstanding that the court of appeal is of opinion that any point raised might be decided in favour of
the accused, no conviction or sentence shall be set aside or altered by reason of any irregularity or
defect in the record or proceedings, unle ss it appears to the court of appeal that a failure of justice has
16

section confers upon a court of appeal an additional power to increase sentence .
However, if this Court were to impose a more severe sentence than th at imposed by
the trial court, that would be prejudicial to Mr Ditlhakanyane. This was not something
within the legislature’s contemplation.

[42] Furthermore, counsel for Mr Ditlhakanyane submitted that the trial court took
into account favourable factors . These includ e that the account holders were refunded
by the Post Bank and , as such , they suffered no financial loss . The State presented
no victim impact report for the trial court to have considered. Thus , the impact on the
Post Bank, whether it was insured or out of pocket or what the loss was, was never
set out. All the accused played a pivotal role in the enterprise and there should not be
any distinction between them, in that the enterprise was not able to function without
each role player performing the function within the enterprise. Counsel stressed the
importance of attaining a balance between the Zinn triad of factors which consists of
the crimes, the accused person ’s circumstances and the interest of society.

[43] There is no dispute that the trial court noted the personal circumstances of Mr
Ditlhakanyane and all other mitigatory which counsel tabulated. It is also clear that the
trial court noted the aggravating circumstances, including the nature and seriousness
of the offence, and the fact that monies were stolen from the poorest of society,
including those who had retired and opted t o save their retirement monies at the Post
Offices because it afforded less cumbersome processes than traditional banks.


in fact resulted from such irregularity or defect. (2) Upon an appeal under section 316 or 316B against
any sentence, the court of appeal may confirm the sentence or may delete or amend the sentence and
impose such punishment as ought to have been imposed at the trial. (3) Where a conviction and
sentence are set aside by the court of appeal on the ground that a failure of justice has in fact resulted
from the admission against the accused of evidence otherwise admissible but not properly placed
before the t rial court by reason of some defect in the proceedings, the court of appeal may remit the
case to the trial court with instructions to deal with any matter, including the hearing of such evidence,
in such manner as the court of appeal may think fit. (4) Wh ere a question of law has been reserved on
the application of a prosecutor in the case of an acquittal, and the court of appeal has given a decision
in favour of the prosecutor, the court of appeal may order that such of the steps referred to in section
324 be taken as the court may direct. (5) The order or direction of the court of appeal shall be transmitted
by the registrar of that court to the registrar of the court before which the case was tried, and such order
or direction shall be carried into effec t and shall authorize every person affected by it to do whatever is
necessary to carry it into effect. (6) The powers conferred by this section upon the court of appeal in
relation to the imposition of punishments, shall include the power to impose a punis hment more severe
than that imposed by the court below or to impose another punishment in lieu of or in addition to such
punishment.
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[44] The trial court noted the high level of planning that went into the racketeering
enterprise, and that it was employees who, with inside knowledge of the Post Office
system, ‘robbed’ the Post Office and pensioners and indigent people who banked with
it. The planning ran over years before it was executed. Outsiders were recruited
because of their criminal record of defrauding people. The full court noted that the
individual sentences imposed by the trial court were appropriate as they took into
account the purposes of punishment, which are aimed at rehabilitation, preventative
deterrence and retribution. For that reason, and believing that the cumulative effect of
the sentence imposed by the trial court was inappropriate, it imposed a lesser
sentence of 40 years imprisonment.

[45] However, on a reading of the trial court’s judgment on sentence, having noted
the serious aggravating circumstances, the creation of an enterprise with a specific
modus operandi to plunder an institution such as the Post Office despite being its
employees, is contrary to the clear intention of the legislature. It is difficult to fathom
why the trial court imposed 20 years imprisonment when the legislature prescribes a
fine of R10 00 million or imprisonment for a period up to life upon conviction of
contravention of s 2(1)(f).33

[46] The trial court deviated from the prescribed sentence without providing reasons
therefor. This, per se, indicates a discretion not exercised judiciously, if not a material
misdirection. It would be correct to say that the full court was conscious of this. Thus,
it reduced the effective sentence to 40 years imprisonment. However, it is still not clear
why it perceived the sentence imposed by the trial court to be unduly harsh when the
legislature prescribed a much higher sentence. To reduce the effectiv e sentence
imposed by the trial court by 10 years does not address the problem. The reasons for
reducing the sentence without interrogating the issue of the duplication of convictions
also point to a discretion not judiciously exercised on the part of the full court.


33 Sentence imposed by the trial court was as follows: Accused 1, on Count 1 managing an enterprise,
was sentenced to serve a term of 30 years imprisonment. On Count 2 conducting an enterprise through
a pattern of racketeering, he was sentenced to serve a te rm of 20 years imprisonment. 10 years of the
sentence imposed in respect of count 2 is to run concurrently with the sentence imposed in respect of
count 1. That results in a sentence in respect of counts 1 and 2 of 40 years imprisonment.
18

[47] It follows that as s 322(6) of the CPA provides, this Court with all the evidence
before it, is in as good a position, having forewarned the applicant, to increase the
sentence if it deems such sentence to be inappropriate. The section empowers this
Court to forewarn an accused person at any time of the proceedings particularly when
it comes to the conclusion that the sentence is less than that which the trial court ought
to have imposed, considering the seriousness of the offence and the prescribed
minimum sentences.

[48] Mr Ditlhakanyane’s personal circumstances are on record. They are not
extraordinary. They pale next to the aggravating circumstances recorded by both
courts. What still stands out starkly is the brazen manner in which the applicant and
his cohorts went a bout plunder ing the Post Office. And years later, having made off
with millions, they have shown no shred of remorse.

[49] The sentence of 20 years imprisonment imposed by the trial court and reduced
by 10 years by the full court is startling ly inappropriate and inadequate for an offence
as serious as this, which the legislature ordained to be punished with life
imprisonment. Besides , the CPA mak es provision for the imposition of concurrent
running sentences in terms of s 280(2)34. However , sentences running concurrently
pose a particular difficulty when one count is set aside , as this case demonstrates .
Courts must exercise extreme caution when declaring sentences to run concurrently.

[50] If this Court does not interfere with this sentence, the administration of justice
will be brought into disrepute. Th is sentence is contrary to the objective s of POCA to
appropriately punish those who participate in organised economic crimes, within the
prescribed sentences ordained by the legislature. A sentence that will fit the offence,
the personal circumstances of the accused person and address the interes ts of society
can only be one over 20 years of imprisonment. Such a sentence will be in line with
precedents of this Court including Tiry, balanced along the lines of the triad and the
prescribed sentence for this kind of offence.


34 Section 280(2) of the Criminal Procedure Act 51 of 1977 allows a court to order that multiple
sentences imposed on an accused person run concurrently. This means the sentences will be served
at the same time, effectively reducing the total time to be spent in prison.
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[51] In the result, the following order issues.
1 The application for reconsideration in terms of s 17(2) (f) of the Superior Courts
Act 10 of 2013 , is granted.
2 The appeal is partially upheld, as set out hereafter.
3 The order of the full court is set aside and substituted with the following:
‘(i) The conviction on count 1, contravention of s 2(1)( f) of the Prevention of
Organised Crime Act 121 of 1998 (POCA) , and the sentence imposed
on this count are set aside.
(ii) The conviction on count 2, contravention of s 2(1)( e) of POCA is
confirmed.
(iii) The accused is sentenced to 30 (thirty) years imprisonment in respect of
count 2 antedated to 17 June 2015 .’



BC MOCUMIE
JUDGE OF APPEAL
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Appearances:

Counsel for the appellant : A C Roestorf
Instructed by: Chris N Billings Attorneys, Johannesburg
Bloemfontein Justice Centre, Bloemfontein

Counsel for the respondent : V S Sinthumule
Instructed by : Director of Public Prosecutions , Johannesburg
Director of Public Prosecutions , Bloemfontein .