THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case nos: 1028/2023
1112/2023

In the matter between:

MANYABA RUBBEN MOHLALOGA APPLICANT/APPELLANT
and
THE STATE RESPONDENT

Neutral citation: Mohlaloga v The State (1028/2023 and 1112/2023) [2025]
ZASCA 115 (8 August 2025)
Coram: MOKGOHLOA ADP and KATHREE-SETILOANE JA and
PHATSHOANE, BLOEM and MOLITSOANE AJJA
Heard: 7 March 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 of the judgment
is deemed to be 11h00 on 8 August 2025.

Summary: Criminal Law – s 17(2) (f) of Superior Courts Act 10 of 2013 –
application for reconsideration of a decision refusing special leave to appeal – no
exceptional circumstances to warrant reconsideration of decision – application
struck from the roll. Appeal against sentence – no misdir ection – sentence not
disproportionate to severity of the offences committed – sentence confirmed.

ORDER


On application for reconsideration: referred in terms of s 17(2)(f) of the Superior
Courts Act 10 of 2013:

1 The application for reconsideration of the decision refusing special leave to
appeal against conviction is struck from the roll.
2 The appeal against sentence is dismissed.


JUDGMENT


Kathree-Setiloane JA (Mokgohloa ADP, Phatshoane, Bloem and Molitsoane
AJJA concurring):


[1] This is the reconsideration of a decision of this Court refusing an application
for special leave to appeal against the order of the Gauteng Division of the High
Court, Pretoria, Neukircher and Sardiwalla JJ sitting as a court of appeal (the high
court). The high court dismissed an appeal against the conviction and sentence of
the applicant, Mr Mohlaloga, by the Regional Court for the Regional Division
Gauteng, Pretoria (the regional court).

Background
[2] Mr Mohlaloga was accused 2 in the regional court. He was convicted on one
count of fraud (count 1) and one count of contravention of s 4 of the Prevention of
Organised Crime Act 121 of 1998 (POCA) (count 2). The regional court sentenced

the appellant to 15 years’ imprisonment on each count and ordered that 10 years of
the sentence on count 2 will be served concurrently with the sentence on count 1.
The effective sentence is 20 years’ imprisonment.

[3] Mr Mohlaloga appealed his conviction and sentence to the high court. On
23 January 2023, the high court dismissed the appeal and confirmed his conviction
and sentence. He applied to this Court for special leave to appeal against the
dismissal of his appea l by the high court. Mbatha JA and Unterhalter AJA (as he
then was) granted Mr Mohlaloga special leave to appeal against sentence but refused
leave against conviction. On 1 September 2023, Mr Mohlaloga applied to the
President of this Court (the President), in terms of s 17(2)(f) of the Superior Courts
Act 10 of 2013 (Superior Courts Act), for a reconsideration of the decision refusing
special leave to appeal on conviction. On 3 January 2024, the President referred the
decision for reconsideration and, if necessary, variation to th is Court. She also
referred the application for special leave to appeal for oral argument in terms of
s 17(2)(d) of the Superior Courts Act.

[4] The application for reconsideration has its genesis in a sector specific
empowerment project: the Agri Broad Based Black Economic Empowerment
(AgriBBBEE). It was approved by parliament to assist previously disadvantaged
farmers financially. Its objective was to facilitate broad -based black economic
empowerment in the agricultural sector. It aimed to achieve this by implementing
initiatives to include black South Africans at all levels of agricultural activity and
enterprises along the entire agricultural value chain, to contribute to the acceleration
of shared growth and wealth creation in the agricultural sector. Pursuant to these
objectives, the National Department of Agriculture (the DOA) and the Land and
Agricultural Bank of South Africa (the Land Bank) created the AgriBBBEE Fund

(the Fund) to facilitate access to equity and develop small and medium enterprises.
The Fund was managed and administered by the Land Bank on behalf of the DOA.
It received an amount of R100 million from the National Treasury.

[5] Applications for funding were submitted to Mr Mosoma , the Fund Manager
(based at the Land Bank), or directly to the DOA. They were to be assessed
according to the requirements of the AgriBBBEE Operational Manual (the manual).
The National Advisory Panel (the NAP) was responsible for approving or rejecting
an application for a grant from the Fund.

[6] The Land Bank was responsible for concluding a due diligence on the
applications and/or proposed projects. Project documentation was to be kept at the
Land Bank and had to include: a letter of application (application form); business
proposal and business plan; all project documentation requesting funding;
assessment of application and compliance to criteria eligibility; and a due diligence
investigation. Paragraph 5.5.1 of the manual explicitly provided that politicians,
while holding public office and government employees do not qualify and will not
be eligible for grants from the Fund.

[7] Mr Mohlahlane, the first accused in the trial, was employed by the DOA as
Deputy Director General and was officially seconded to the Land Bank as the acting
Chief Executive Officer (acting CEO) during August 2007. Mr Mohlaloga, who was
a member of parliament and the Chairperson of the Portfolio Committee on
Agriculture (the Portfolio Committee), at the time, approached Mr Tjia with a
proposal to approach Mr Mohlahlane to discuss the funding of a farming project. As
acting CEO of the Land Bank, Mr Mohlahlane was required to report on the Fund to

the Portfolio Committee. Mr Tjia was the CEO of the Limpopo Youth Commission
in the Office of the Premier of Limpopo.

[8] Mr Mohlaloga subsequently met Mr Tjia and Mr Nkhwashu, an attorney and
partner at the law firm Dingamanzi Ka Dinga (DKD attorneys), at his house in
Polokwane. Mr Nkhwashu was the third accused in the trial and DKD attorneys was
the fourth accused. Mr Mohlaloga, Mr Tjia and Mr Nkhwashu discussed embarking
on a broad-based youth empowerment project to empower, educate and employ the
youth. Mr Mohlaloga knew Mr Nkhwashu because he had done some work in the
past for him. During December 2007, Mr Mohlaloga met with Mr Mohlahlane and
discussed the proposed project with him. Mr Mohlahlane asked Mr Tjia how much
money was required for their proposed project. Mr Tjia informed him that an amount
of R500 000 would be sufficient. Mr Mohlahlane undertook to submit an application
for funding to the Land Bank.

[9] Mr Mohlahlane informed Mr Mohlaloga that they qualified for a R3 million
grant from the Fund. Mr Mohlaloga relayed this information to Mr Tjia and
Mr Nkhwashu. With that knowledge, Mr Mohlaloga and Mr Tjia immediately
changed plans and the idea of a broad-based empowerment program was abandoned.
They decided to buy a farm on receipt of the grant. It was apparent, from that point
on, that they intended to make a profit from the project and it ceased to be a broad -
based empowerment programme.

[10] Mr Mohlaloga and Mr Tjia then began their search for a farm to buy. They
found a suitable one, at Dendron, but the purchase price was R4 million. In January
2008, a subsequent meeting was held between Mr Mohlaloga, Mr Mohlahlane ,
Mr Nkhwashu and Mr Tjia at Mr Mohlaloga's residence. Mr Mohlahlane proposed

that Mr Tjia should apply for a grant of R6 million from the Fund as Mr Mohlaloga
was not eligible to apply. He brought it to their attention that the manual prohibited
serving politicians from applying and/or benefiting from the Fund.

[11] On being informed of this, Mr Mohlaloga instructed Mr Tjia to make the
application. Mr Nkhwashu was appointed as the legal advisor. Mr Tjia drafted the
application in manuscript, while Mr Mohlahlane dictated it to him. On completion
of the application, Mr Tjia appended his signature to it. Mr Mohlahlane then
undertook to hand this application to Mr Mosoma at the Fund but never did so.
Mr Mohlahlane did, however, submit a typed version of the application to the Fund
containing a signature resembling that of Mr Tjia.

[12] A few days later, Mr Mohlaloga and Mr Tjia decided to look for another farm
to purchase as they considered Dendron to be overpriced. Mr Mohlaloga undertook
to inform Mr Mohlahlane of this. During January 2008, Mr Mohlahlane approached
Mr Mosoma at the Land Bank and handed him the application signed by Mr Tjia.
He informed Mr Mosoma that the Minister was extremely frustrated because there
was no progress with empowerment programs and instructed him to prepare the
payment documents. The project was presented to Mr Mosoma as the Dingwako
Agricultural Project, to empower the youth in the agricultural sector. On
23 January 2008, Mr Mosoma, on the instructions of Mr Mohlahlane, authorised a
request for payment of R6 million. There was no formal application, no business
plan or due diligence performed on the project. The application was also never
considered or approved by the NAP.

[13] A complication arose when there was an audit on the Fund, and Mr Mosoma
had no documents to show. A paper trail was created and various documents were

falsified in an attempt to mislead the auditors. There was no contract in place.
Mr Mosoma decided that the solution would be to call a NAP meeting in order to
have the irregular payment ‘ratified’. But for the audit the transaction would never
have been discovered.

[14] On 1 February 2008, R6 million was transferred from the Fund to the trust
account of Mr Nkhwashu’s law firm (DKD attorneys’ trust account). It reflected in
the account on 6 February. This payment was disbursed largely to Mr Mohlaloga.
Within a period of t hree months from date of payment of the R6 million into the
DKD attorneys’ trust account, an amount of only R22 641.44 remained. The grant
money was depleted, and not a cent had been spent for the purpose for which it had
been originally designated by the Land Bank.

[15] Mr Mohlaloga received the following benefit: On 4 February 2008, R80 000
was transferred from the DKD attorneys’ trust account to his personal bank account.
On 13 March 2008, an amount of R866 150 was paid to Leo Hasse BMW Hatfield
out of the DKD attorney s’ trust account for two BMW vehicles registered in the
name of Mr Mohlaloga. A further payment of R2 800 000 was transferred from that
trust account into the bank account of the Disetla Family Trust (Mr Mohlaloga’s
family trust) in three traches: R800 000 on 1 April 2008; R1 000 000 on
11 April 2008, and R1 000 000 on 12 April 2008.

[16] Between 7 August 2008 and 13 October 2008, 10 individual payments
totalling R2 290 000 were made from the Disetla Family Trust account back to the
DKD attorneys’ trust account. This money was almost immediately paid, in seven

instalments between 12 August 2008 and 13 October 2008, to the trust account of
Henstock and Van den Heever, being payment for the farm Schuinshoek.1

[17] A total of R270 000 was transferred in five transactions between
17 April 2008 and 13 October 2008 to the personal account of Mr Mohlaloga. He
transferred R10 000 to the account of his wife, bought art for R30 000 and a
timeshare for R61 000. He also bought a stationary business for a total of R263 771
in January 2009. He made a payment of R150 000 on 6 August 2008, and a payment
of R70 000 on 3 March 2009, to the account of Mr Mokase, the attorney of
Mr Mohlahlane, for the benefit of Mr Mohlahlane. All the money used to make the
abovementioned disbursements was Landbank/Fund money. As a result, the grant
of R6 million was totally exhausted.

[18] Mr Tjia and Mr Mosoma gave evidence in the trial for the state. They were
witnesses in terms of s 204 of the Criminal Procedure Act 51 of 1977 (the Criminal
Procedure Act). Mr Söhnge gave evidence on the flow of the money. He was a
properly qualified chartered accountant with Price Waterhouse Coopers at the time
and conducted the forensic investigation.

[19] The issue for determination in this application is whether there are exceptional
circumstances that warrant a reconsideration of the application refusing leave to
appeal on conviction.

Exceptional Circumstances

1 The only money that was repatriated to the DKD attorneys’ trust account is R2 800 000 referred to above, and two
payments totalling R470 000 on 12 and 13 December 2008. According to the evidence led in the regional court, the
latter amount was received when Mr Mohlaloga sold one of the BMW cars to Mr Ebrahim of ISCARS.

[20] In Motsoeneng v South African Broadcasting Corporation Soc Ltd and
Others,2 this Court 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 reconsideration. More recently,
in Bidvest Protea Coin Security (Pty) Ltd v Mandla Wellem Mabena (Bidvest),3 this
Court endorsed that position when it held that the court to which the referral is made
is ‘to be the ultimate arbiter as to whether the jurisdictional fact for the exercise of
the power exists’. Thus, before this Court may proceed to reconsider the decision of
the high court refusing leave to appeal, Mr Mohlaloga is required to demonstrate
that there are exceptional circumstances that warrant a reconsideration of the
decision refusing leave to appeal.

[21] As held by the Constitutional Court in Liesching and Others v S,4 exceptional
circumstances envisaged in s 17(2)(f) of the Superior Courts Act are circumstances
which give rise to a probability of grave individual injustice, 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
this Court for reconsideration on 3 January 2024, the old formulation of s 17(2) (f)
still applies.


2 Motsoeneng v South African Broadcasting Corporation Soc Ltd and Others [2024] ZASCA 80; 2024 JDR 2195
(SCA) para 14.
3 Bidvest Protea Coin Security (Pty) Ltd v Mandla Wellem Mabena (Bidvest) [2025] ZASCA 23; 2025 (3) SA 362
(SCA) para 13.
4 Liesching and Others v The State [2018] ZACC 25; 2019 (4) SA 219 (CC); 2018 (11) BCLR 1349 (CC); 2019 (1)
SACR 178 (CC) para 138.

[22] Mr Mohlaloga sets out, in his s 17(2)(f) application for reconsideration, what
he claims to be exceptional circumstances that warrant a reconsideration of the
decision refusing leave to appeal as follows:
‘It is respectfully submitted that the blatant misapplication of fundamental legal principles,
particularly pertaining to charge sheets, the evaluation of the evidence of the s 204 witness,
Mr Tjia, and the negligible application of the doctrine of common purpose, in stark contrast to the
trite principles set out in S v Safatsa and Others,5 are at the very least ‘atypical’ and unprecedented’,
with due regard to the particular facts of the matter, and therefore constitute exceptional
circumstances which justify the relief sought in this application.
I verily believe that due and adequate consideration will be given to this application in terms of
s 17(2)(f) of the Act, as a failure to do so, with the greatest of respect, and a failure to refer the
application to the Justices who refused leave to appeal, will result in an irreparable injustice which
will be so grave that it would essentially, redefine the ap proach courts have to adopt regarding
averments in charge sheets and the State’s burden to prove same. It will further lead to an untenable
precedent promoting a notion that to defy the principles espoused in S v Van der Meyden,6 followed
by a myriad of Judgments of this Court how to approach evidence in the criminal cases and
evaluating it. If the Judgment of the Court of Appeal (Court below) stands, it will amount to
irreparable harm to me, the administration of justice, and the public at large. It will, moreover, with
respect, inevitably lead to a travesty of justice, that will profoundly impact on our criminal
procedure, criminal law and the law of evidence.
In addition to the assertions advanced above, it is compelling, with respect, to also deal with the
principles espoused in the seminal judgment of S v Hugo.7 These principles are imbued in our law

and imparts on the trier of fact the obligation to apply same. A deviation of these principles is fatal.
Despite this, the principles, as contemplated in S v Hugo (supra) were totally ignored, and yielded
a conviction of fraud, which by any stretch of imagination was impossible.
It is trite that the conclusion which is reached by a court (whether it be to convict or to acquit)
must account for all the evidence – good or bad. The s 204 witness, Tjia, conceded that not a single
one of the misrepresentations alleged in the charge sheet were made, or that the appellant had the

5 S v Safatsa and Others 1988 (1) SA 868 (A).
6 S v Van der Meyden 1999 (1) SACR 447 (W).
7 S v Hugo 1976 (4) SA 536 (A).

requisite mens rea to commit these misrepresentations and a fraud. The Court of Appeal, who
granted him indemnity from prosecution, does not take this into account at all. The Court of Appeal
found Tjia’s evidence to be satisfactory in all material respects and found him to be a credible
witness, whilst simply ignoring the exculpatory evidence, which was presented by the very same
witness. This approach flies in the face of the principles espoused in S v Van der Meyden.
The conviction in terms of contravening both 4 (a) and 4 (b) of POCA flows from a complete
disregard for the elements of the statutory offence as are contained in the ordinary wording of the
statute. There exists simply no evidence to sustain this conviction. It is imperative for legal
certainty that the Supreme Court of Appeal pronounces on the proper interpretation of the statute
and the purview of the offences it creates.’

[23] I am unable to find that exceptional circumstances exist in this case that
warrant a reconsideration of the decision refusing leave to appeal. The errors which
the high court is said to have made ultimately turn on the evaluation of the evidence
and findings of fact and law which have been raised before in Mr Mohlaloga’s appeal
in the high court, and in his application for special leave which was refused by two
judges of this Court.

[24] The error relating to Mr Mohlaloga’s conviction under s 4(a) and (b) of POCA
turns on the application of the law to the facts. The charge sheet alleges that
Mr Mohlaloga is guilty of the contravention of s 4 (a) and/or s 4(b) of POCA. The
regional court convicted Mr Mohlaloga on count 2 as charged. On appeal, the high
court found that the evidence established Mr Mohlaloga’s guilt in respect of both
s 4(a) and 4(b) of POCA. Although this is a finding in law, it was raised before by
Mr Mohlaloga in the appeal before the high court, and in the application for special
leave to appeal which was refused by two judges of this Court. As held by this Court

leave to appeal which was refused by two judges of this Court. As held by this Court
in Avnit v First Rand Bank Ltd,8 ‘an application that merely rehearses the arguments

8 Avnit v First Rand Bank Ltd [2014] ZASCA 132; [2014] JOL 32336 (SCA) para 6.

that have already been made, considered and rejected will not succeed, unless it is
strongly arguable that justice will be denied unless the possibility of an appeal can
be pursued’. Accordingly, I am of the view, that Mr Mohlaloga has failed to
demonstrate that the so -called errors which he seeks to appeal against constitute
exceptional circumstances such that, if not reconsidered, would result in a grave
injustice or place the administration of justice into disrepute.

[25] Mr Mohlaloga has accordingly been unable to meet the heightened threshold
to demonstrate exceptional circumstances. In the circumstances, the application for
reconsideration of the refusal of the application for leave to appeal against sentence
falls to be struck from the roll.

Appeal against Sentence
[26] It is well established that sentencing involves the exercise of a discretion by
the trial court, and an appeal court cannot interfere with that discretion unless it is
not judicially exercised, in that the trial court committed a misdirection on a material
aspect or that the sentence is so severe that it induces a sense of shock.9

[27] Mr Mohlaloga’s primary ground of appeal is that an effective term of 20 years’
imprisonment on both counts is shockingly disproportionate to the convictions of
fraud and money laundering. In addition, he contends that the regional court erred
in failing t o find that there are substantial and compelling circumstances which
justified a lesser sentence on his conviction on fraud.


9 S v De Jager 1965 (2) SA 616 AD at 628-629.

[28] With reference to the sentence on count 1 (fraud), s 51(2)(a)(i) of the Criminal
Law Amendment Act 105 of 1997 (CLAA) applies. It prescribes a minimum
sentence of 15 years’ imprisonment for a first offender convicted of an offence in
Part II of Schedule 1, which includes fraud where the amount exceeds R500 000.
The mi nimum sentence is applicable unless the trial court finds that there are
substantial and compelling circumstances that warrant a lesser sentence. The
minimum sentence applies to Mr Mohlaloga’s conviction on count 1.

[29] In relation to this count, the regional court considered all the mitigating and
aggravating factors and concluded, correctly so, that there are no substantial and
compelling circumstances that justified a lesser sentence. The regional court
considered the following factors in mitigation of sentence: Mr Mohlaloga was
46 years old at the time of sentencing; he was a first offender; he was married with
three minor children and two adult children; his wife was unemployed; he supported
the extended family, including his mother, mother-in-law, sister and her husband; he
was highly educated and graduated from the University of London.

[30] The mitigating factors must, however, be weighed up against the aggravating
factors: These are that Mr Mohlaloga played a pivotal role in the commission of the
offences while he was an elected member of parliament and Chairperson of the
Portfolio Committee on Agriculture. In electing him to parliament, the electorate put
their trust in Mr Mohlaloga. He, however, abused that trust by perpetrating the crime
of fraud against the Fund which was funded by taxpayers’ money. Mr Mohlaloga
understood, as a member of parliament, that he was not eligible to apply for a grant
from the Fund. The manual set this out unequivocally. So, to overcome this
impediment, he instructed Mr Tjia to make the application in his name.

[31] AgriBBBEE was a noble project that was intended to uplift and empower
previously disadvantaged and emerging farmers in the agricultural sector to progress
to commercial farming. As chair of the Portfolio Committee to which the Land Bank,
through Mr Mohlahlane, reported on the Fund, he was enjoined to protect the money
in the Fund and ensure that it was allocated to the intended recipients. Instead, he
colluded with other public officers to defraud the Fund for self -benefit.
Mr Mohlaloga, including Mr M ohlahlane and Mr Nkhwashu, committed the
offences out of pure greed. There is no evidence that they needed the money to
survive.

[32] Mr Mohlaloga was the principal beneficiary of the grant. The R2 800 000 that
was transferred into the Ditsetla Family Trust, was for him to use for his personal
benefit. Mr Mohlaloga and his family were the beneficiaries of the trust. Despite
being highly educated, well -connected and successful, he believed that he was
entitled to the grant from the Land Bank and could do with it as he pleased. He,
therefore, justified purchasing two BMW motor vehicles with the grant money – one
for himself and the other for his wife – and using it to buy a stationary business, art,
etc.

[33] By the end of April 2008, there was no money left for the project. A total
amount of R3 600 000 was paid to Mr Mohlaloga. Except for the R2 800 000 that
was repatriated to pay for the farm, nothing has been paid back. Mr Mohlaloga only
bought the farm as a smoke screen to prevent detection and fool the auditors. He
failed to recognise that the grant was intended to empower disadvantaged people in
the agricultural sector, and that by defrauding the Fund, he was denying those who
most needed its financial assistance.

[34] It is inconceivable that Mr Mohlaloga did not know what the purpose of the
grant was, and that it was directed at empowering previously disadvantaged people.
Despite being given an opportunity to repay the money by the regional court,
Mr Mohlaloga failed to do so. It is clear from his testimony during the trial that he
lacked remorse. He remained adamant that the grant money belonged to him and
repeatedly stated: ‘I do not know what you mean by Land Bank money, because
once the money is approved and gi ven to the beneficiary, it belongs to the
beneficiary’. These factors weighed heavily against Mr Mohlaloga in the regional
court. Thus, having considered the mitigating and aggravating circumstances, the
regional court cannot be faulted for concluding that that there were no substantial
and compelling circumsta nces which warranted a deviation from the minimum
sentence of 15 years’ imprisonment on the conviction of fraud.

[35] I now deal with the appeal against the sentence of 15 years’ imprisonment
imposed in respect of count 2. Section 8(1) of POCA provides that a person
convicted of a contravention of s 4, 5, or 6 shall be liable to a fine not exceeding
R100 million or to imprisonment for a period not exceeding 30 years’ imprisonment.
In the circumstances, a sentence of 15 years’ imprisonment cannot be said to be
overly severe. Acting out of mercy, the regional court allowed 10 years of that
sentence to run concurrently w ith the sentence of 15 years’ imprisonment for the
fraud conviction. In my view, the effective sentence is proportionate to the severity
of the offences of fraud and money laundering as contemplated in s 4 of POCA.

[36] Corruption and white -collar crime in state -owned entities lead to economic
decline, job losses, more poverty, and reduced public trust. Unless those convicted
of such crimes receive appropriate sentences, public confidence and participation in

government institutions would be completely eroded, leading to increased
inefficiencies and possible collapse.

[37] Thus, having regard to the Zinn10 triad of the gravity of the offences
committed by Mr Mohlaloga, his circumstances and the public interest, I am of the
view that an effective sentence of 20 years’ imprisonment is not shockingly
inappropriate. For these reasons, the appeal against sentence must fail.

[38] In the result, I make the following order:
1 The application for reconsideration of the decision refusing leave to appeal
against conviction is struck from the roll.
2 The appeal against sentence is dismissed.




F KATHREE-SETILOANE
JUDGE OF APPEAL


10 S v Zinn 1969 (2) SA 537 (A) 540G-H.

Appearances

For the appellant: F Roets
Instructed by: Krause Attorneys Inc, Johannesburg
Honey & Partners Inc, Bloemfontein

For the respondent: AG Janse van Rensburg
Instructed by: Director of Public Prosecutions, Pretoria
State Attorney, Bloemfontein.