• Law Reports
  • S v Khan (Appeal) (A190/2024) [2026] ZAWCHC 13 …

S v Khan (Appeal) (A190/2024) [2026] ZAWCHC 13 (21 January 2026)

80 Reportability
Criminal Law
View PDF SAFLII Source
Share WhatsApp LinkedIn X Email

Brief Summary

Fraud — Sentencing — Appeal against sentence imposed by trial court for five counts of fraud — Sentence found to be startlingly inappropriate — Appeal court sets aside sentence and remits matter for re-hearing before another magistrate.

Comprehensive Summary

Summary of Judgment


1. Introduction


The matter concerned an appeal by the State against sentence imposed in the Regional Court, Bellville, following convictions on five counts of fraud relating to the respondent’s tax affairs. The appeal was prosecuted by the Director of Public Prosecutions, Western Cape on behalf of the State (appellant) against Shafiek Khan (respondent), an accountant and tax practitioner registered with the South African Revenue Service (SARS).


The respondent had been convicted in the regional court after initially pleading guilty. The sentencing court imposed a combination of a wholly suspended term of imprisonment (subject to conditions including payment to SARS) and correctional supervision. The State contended that the sentence was startlingly and inappropriately lenient, and sought appellate interference.


Procedurally, the Director of Public Prosecutions invoked section 310A of the Criminal Procedure Act 51 of 1977 to seek leave to appeal against sentence directly from a High Court judge in chambers. Leave was granted. When the appeal was argued, however, the High Court identified gross procedural irregularities on the record which, in its view, vitiated the proceedings in the regional court. The appeal therefore ultimately turned not only on sentence, but on the validity of the underlying proceedings that produced the conviction and sentence.


The general subject-matter of the dispute was therefore twofold. First, whether the sentence imposed for sustained “white-collar” tax fraud was disproportionally lenient. Second, and decisively, whether procedural defects in the trial process rendered the proceedings a nullity such that the conviction and sentence could not stand.


2. Material Facts


The undisputed factual foundation, as accepted and relied upon by the High Court, was that the respondent faced five fraud charges based on under-declaration of gross income (and exaggeration of certain expenses) in annual returns submitted to SARS for the tax years 2004 to 2008. The State’s allegations, reflected in the judgment, quantified the alleged prejudice to SARS for each count, with the amounts ranging from approximately R105 111.36 to R486 907.30, and a cumulative figure referenced on the record of R1 168 447.61 for the tax years 2004 to 2008.


At the commencement of the trial in July 2019, the respondent (legally represented) pleaded guilty to the five counts. A statement in terms of section 112(2) of the Criminal Procedure Act 51 of 1977 was read into the record, in which the respondent admitted the falsity of the information submitted to SARS and admitted that he intentionally declared lower income to avoid paying the tax that would otherwise have been due.


The procedural history then became central. During the initial sentencing phase, the respondent gave evidence in mitigation. In the course of that evidence (including cross-examination), he advanced matters that the regional magistrate treated as raising a defence, prompting the magistrate to invoke section 113 of the Criminal Procedure Act 51 of 1977 and to change the plea from guilty to not guilty. After doing so, the magistrate recused himself, and directed that the matter should start de novo before another regional magistrate in a different courtroom.


Following postponements (including COVID-19 related disruptions), the matter proceeded before another regional magistrate, who invoked section 118 of the Criminal Procedure Act 51 of 1977 and continued with the matter from where it had left off, rather than commencing afresh. The respondent did not plead anew at that stage. Admissions were made in terms of section 220. After hearing evidence (including one State witness on the merits, and later evidence in aggravation of sentence by a SARS investigator), the respondent was again convicted and sentenced.


For purposes of the sentencing enquiry (and the State’s criticism of the sentence), the High Court relied on evidence accepted on the record that the respondent’s conduct was sustained over several years, that SARS had audited or investigated his returns, and that despite being informed of assessments reflecting substantial outstanding liabilities, he made significant purchases (including vehicles) and held multiple properties. The High Court also relied on the evidence that the respondent’s later conduct (including non-submission of returns for subsequent years) was inconsistent with genuine remorse.


Where the matter became disputed in the regional court (as reflected in the High Court’s recounting) was the respondent’s position during mitigation, which led to the change of plea; however, the High Court’s decision did not turn on the factual merits of that defence, but on the procedural consequences of how the plea change, recusal, and continuation of the trial were handled.


3. Legal Issues


The appeal raised, in substance, the question whether the sentence imposed was so lenient that it justified appellate interference. This aspect involved the application of legal principles governing appellate interference in sentencing to the facts of the respondent’s offences and personal circumstances.


A further and ultimately determinative set of issues concerned questions of law and procedure. The High Court was required to determine whether the proceedings in the regional court were affected by gross irregularities that rendered the conviction and sentence invalid. This required interpretation and application of provisions of the Criminal Procedure Act 51 of 1977, especially sections 113 and 118, as well as the extent of a magistrate’s powers to order that a matter proceed de novo before another magistrate.


In addition, the court considered whether the presiding officer’s recusal was justified on the record, which involved the application of established principles regarding judicial recusal and the objective test for bias or reasonable apprehension of bias.


4. Court’s Reasoning


On the sentencing question, the High Court restated the principle that sentencing is pre-eminently within the discretion of the trial court, and that an appellate court does not interfere absent a material misdirection, irregularity, or a sentence so inappropriate that it induces a sense of shock. In this connection, the court referred to S v Rabie 1975 (4) SA 855 (A) and S v Moosajee [1999] 2 All SA 353 (A). The court also relied on S v Sadler 2000 (1) SACR 331 (SCA) for the proposition that where there is a striking disparity between the sentence imposed and the sentence that the appellate court would have imposed, interference is warranted because the discretion has been unreasonably exercised.


Applying those principles, the court evaluated the seriousness of the offences as sustained and planned tax fraud committed by a professional tax practitioner over a five-year period, involving substantial amounts and persistence even after SARS scrutiny. The court considered that “white-collar” fraud has a corrosive impact on society and the fiscus, and referred to the approach in S v Nieuwenhuizen (20339/14) [2015] ZASCA 90 (29 May 2015) and S v Sadler 2000 (1) SACR 331 (SCA) in emphasising the seriousness of such crimes and the need for effective deterrence.


The High Court further considered the trial court’s approach to remorse, holding that the court a quo erred in treating remorse as established. It relied on S v Matyityi 2011 (1) SACR 40 (SCA), together with S v Jiminez 2003 (1) SACR 507 (SCA) and S v Seegers 1970 (2) SA 506 (A), for the requirements of genuine remorse, including candid insight into motivation, change of heart, and appreciation of consequences. On the record, the High Court found there was no sufficient basis to conclude genuine contrition, and noted conduct after the initial events that was inconsistent with remorse, including continuing non-compliance with tax obligations (although the court acknowledged those later periods were not the subject of charges).


The court also addressed the mitigating value of a guilty plea, stating that a guilty plea in the face of overwhelming evidence may be a neutral factor, relying on S v Barnard 2004 (1) SACR 191 (SCA).


Despite these conclusions suggesting that a substantially more severe sentence (including direct imprisonment) might have been appropriate, the High Court held that it could not properly proceed to substitute sentence because the record disclosed gross irregularities rendering the proceedings a nullity.


The High Court then set out the procedural defects in detail. First, once the plea was changed under section 113 of the Criminal Procedure Act 51 of 1977, the presiding magistrate was required to continue with the prosecution. The court relied on S v Moses 2019 (1) SACR 75 (WCC) to support the proposition that section 113 contemplates continuation before the same judicial officer, and that awareness of admissions or even prior convictions does not in itself require recusal or transfer to another presiding officer. The court held that the recusal in the present matter was not justified on any ground apparent from the record and was therefore irregular, and it reiterated general recusal principles by reference to President of the Republic of South Africa v South African Rugby Football Union 1999 (4) SA 147 (CC).


Second, the High Court held that it was legally impermissible for a magistrate to order that proceedings commence de novo before another magistrate, absent statutory authority. The court relied on the principle that a magistrates’ court is a creature of statute with only statutory powers, citing Santam Insurance Co Ltd v Liebenberg NO and Another 1976 (4) SA 312 (N). It further relied on S v Mbothoma en 'n Ander 1978 (2) SA 530 (O) and S v Richter 1998 (1) SACR 311 (C) for the proposition that where a declaration of nullity or a restart is required, the matter should be referred to the High Court for setting aside and proper directions. The court identified a narrow statutory power to restart proceedings in section 93ter(11)(a)(bb) of the Magistrates Act 32 of 1944, but found it inapplicable to the facts. It distinguished the exception of “supervening impossibility” by reference to S v Stoffels and 11 Similar Cases 2004 (1) SACR 176 (C).


Third, the High Court held that the subsequent presiding magistrate’s reliance on section 118 of the Criminal Procedure Act 51 of 1977 was impermissible. The court reasoned that section 118 applies only where a not-guilty plea has been entered and no evidence has yet been adduced, and that it is intended to allow continuation before a different judicial officer only in those limited circumstances. The court referred to David v Regional Court Magistrate and Others 2018 (1) SACR 702 (ECB) in explaining the purpose and limits of section 118. On the record, evidence had already been led (including mitigation evidence before the first magistrate), and the situation did not fall within section 118. The High Court also recorded that, after engagement, both counsel conceded that section 118 had been wrongly invoked on these facts.


On the basis of these defects, the High Court concluded that the later proceedings (including conviction and sentence) were tainted by illegality and were a nullity, requiring that the proceedings be set aside and the matter remitted for a fresh trial before another regional magistrate.


Finally, the court noted that if the prosecution were pursued again and the respondent were properly convicted, the trial court should consider any sentence already served, relying on S v Ndzishe and Another 2023 (2) SACR 419 (WCC).


5. Outcome and Relief


The High Court set aside the proceedings in the court below. It set aside both the conviction and sentence, not on the basis that the conviction was substantively incorrect, but because gross procedural irregularities vitiated the proceedings.


The matter was remitted to the Regional Court, Bellville, to be heard de novo before another Regional Magistrate, should the Director of Public Prosecutions elect to continue prosecuting the respondent.


The order as framed in the judgment did not include a costs order.


Cases Cited


S v Rabie 1975 (4) SA 855 (A)


S v Moosajee [1999] 2 All SA 353 (A)


S v Sadler 2000 (1) SACR 331 (SCA)


S v Nieuwenhuizen (20339/14) [2015] ZASCA 90 (29 May 2015)


S v Matyityi 2011 (1) SACR 40 (SCA)


S v Jiminez 2003 (1) SACR 507 (SCA)


S v Seegers 1970 (2) SA 506 (A)


S v Barnard 2004 (1) SACR 191 (SCA)


S v Moses 2019 (1) SACR 75 (WCC)


President of the Republic of South Africa v South African Rugby Football Union 1999 (4) SA 147 (CC)


Santam Insurance Co Ltd v Liebenberg NO and Another 1976 (4) SA 312 (N)


S v Mbothoma en 'n Ander 1978 (2) SA 530 (O)


S v Richter 1998 (1) SACR 311 (C)


S v Stoffels and 11 Similar Cases 2004 (1) SACR 176 (C)


David v Regional Court Magistrate and Others 2018 (1) SACR 702 (ECB)


S v Ndzishe and Another 2023 (2) SACR 419 (WCC)


Legislation Cited


Criminal Procedure Act 51 of 1977 (sections 112(2), 113, 118, 220, 276(1)(h), 310A)


Income Tax Act 58 of 1962 (section 104)


Magistrates Act 32 of 1944 (section 93ter(11)(a)(bb))


Rules of Court Cited


No rules of court were cited in the judgment.


Held


The High Court held that, although the offences were serious and the sentence imposed appeared strikingly lenient on the record, the decisive feature of the matter was that the regional court proceedings were vitiated by gross irregularities.


It held that, after a plea was altered to not guilty under section 113 of the Criminal Procedure Act 51 of 1977, the presiding magistrate was required to continue with the prosecution, and that the recusal (on the record presented) was irregular. It further held that the magistrate lacked authority to direct that the case start de novo before another magistrate, and that the later attempt to continue the case under section 118 was legally incompetent because the statutory prerequisites for that section were not satisfied.


Accordingly, the High Court held that the conviction and sentence could not stand, set aside the proceedings, and remitted the matter to the regional court for a fresh trial before another regional magistrate, should the prosecution be pursued.


LEGAL PRINCIPLES


A sentencing court exercises a discretion, and appellate interference with sentence is limited to instances of material misdirection or irregularity, or where the sentence is so disproportionate that it is startlingly inappropriate and induces a sense of shock. A striking disparity between the trial court’s sentence and what an appellate court would have imposed may justify interference because it indicates an unreasonable exercise of discretion.


“White-collar” fraud, including sustained tax fraud, is treated as a serious offence with broader societal and economic consequences. Sentencing must reflect the gravity of sustained dishonesty, the impact on the fiscus, and deterrence, and it is not sufficient to treat such offences as minor merely because they are non-violent.


A guilty plea is not necessarily proof of remorse, and may be a neutral factor where the evidence is overwhelming. Remorse, to be mitigating, requires a proper basis on the evidence demonstrating sincere contrition, insight into motivation, and appreciation of consequences, with the accused taking the court fully into confidence.


When a court records a plea of not guilty under section 113 of the Criminal Procedure Act 51 of 1977, the statute contemplates that the prosecution proceeds before the same presiding officer; recusal must be justified on proper grounds and is not warranted merely because the presiding officer has been exposed to admissions or information typically incident to the proceedings.


A magistrate’s court, being a creature of statute, has no inherent power to direct that a matter commence de novo before another magistrate absent statutory authority. The limited statutory ability to restart proceedings in the magistrates’ court arises in specific circumstances (such as those contemplated in the Magistrates Act concerning assessors), and does not confer a general power to order a fresh trial before a different judicial officer.


Section 118 of the Criminal Procedure Act 51 of 1977 permits continuation of a trial before a different judicial officer only where the original judicial officer is unavailable after a plea of not guilty and before any evidence has been adduced; it may not be used to cure procedural defects or to continue proceedings after evidence has already been led.

REPORTABLE
In the High Court of South Africa
(Western Cape Division, Cape Town)

Case No: A190/2024

In the matter between:

THE STATE APPELLANT

And

SHAFIEK KHAN RESPONDENT

Neutral citation: The State v Khan (Appeal Case no A190/2025)
[2025] ZAWCHC…(21 January 2026)
Coram: ERASMUS J et LEKHULENI J
Heard: 15 August 2025
Delivered: 21 January 2026

Summary: Appeal by the Director of Public Prosecutions against sentence on five
fraud charges – Sentence imposed by the trial court startlingly inappropriate –
Appeal Court noting gross irregularities on the record vitiating the entire proceedings
– Proceedings set aside – Matter remitted to the regional court to be heard de novo
before another Regional Magistrate.
___________________________________________________________________
JUDGMENT
___________________________________________________________________

LEKHULENI J (ERASMUS J Concurring):

Introduction

[1] This is an appeal by the State against the sentence imposed on the respondent
by the Bellville regional court . The respondent, an accountant and tax practitioner
registered with the South African Revenue Service (SARS) as such, was convicted
by the Bellville regional court on 13 September 2022 on five counts of fraud. The five
counts of fraud were premised on the respondent’s fraudulent under-declaration of
his gross income for the years 2004 to 2008 when he submitted his annual tax
returns to SARS, and on his exaggeration of some of his expenses.

[2] The State alleged that in 2004 and 2005, the respondent under -declared his
income and caused SARS to suffer tax prejudice in the sum of R105 11.36 and R116
947.10, respectively (counts 1 and 2). The State alleged further that in 2006 and
2007 (counts 3 and 4), the respondent under -declared his gross income, which
caused SARS to suffer tax prejudice in the sum of R108 646.60 and R486 907.30,
respectively. On count 5, the State alleged that in the 2008 fiscal year , the
respondent under -declared his gross income and caused SARS to suffer tax
prejudice in the sum of R350 836.25.

[3] At the commencement of the trial, the respondent pleaded guilty to the charges
and was subsequently convicted on the five c ounts on 13 September 2022. On the
13 January 2023, the court a quo imposed sentence on the respondent and took
counts 1 , 2, 3 and 5 together for the purposes of sentence and sentenced the
respondent to five years imprisonment which was wholly suspended for five years on
condition that the respondent is not convicted of fraud, theft, or contravention of s
104 of the Income Tax Act 58 of 1962, committed during the period of suspension
and that the respondent pays the sum of R1,000,000 to the SARS on or befor e 1
June 2023. On count 4, the trial court sentenced the respondent to two years
correctional supervision in terms of s 276(1)(h) of the Criminal Procedure Act 51 of

correctional supervision in terms of s 276(1)(h) of the Criminal Procedure Act 51 of
1977 (the CPA).

[4] Aggrieved by the sentence imposed by the trial court, the Director of Public
Prosecutions of the Western Cape invoked the provisions of s 310A of the CPA and
applied for leave to appeal in this court (not the lower court) before a judge in
chambers against the sentence imposed by the court a quo. The Director of Public
Prosecutions contended that the sentence imposed by the trial court was startlingly
and inappropriately lenient in the circumstances and sought leave before a judge in
chambers to appeal the sentence.

[5] In addition, the Director of Public Prosecutions complied with the provisions of
s 310A(3) of the CPA in that at least 14 days before the day appointed for the
hearing of the application for leave to appeal by a Judge in chambers, she caused to
be served by the deputy sheriff upon the respondent in person a copy of the notice
for leave to appeal, together with a written statement of the rights of the respondent
in terms of s 310A(4) of the CPA. The application and the statement of rights wer e
duly served upon the respondent, and the latter oppose d the Director of Public
Prosecutions’ application for leave to appeal.

[6] The Director of Public Prosecutions provided this court with a proper return of
service, confirming that a copy of her application for leave to appeal, together with
the written statement of the rights of the respondent in terms of that subsection, had
been properly served upon the respondent. The application for leave to appeal,
submitted by the Director of Public Prosecutions in terms of s 310A, was considered
in chambers without the respondent, who did not appear despite being properly
notified. On 6 Febr uary 2024, Le Grange ADJP, as he then was, granted the
application during a session in chambers.

[7] The Director of Public Prosecutions now sought to prosecute the appeal against
the sentence imposed by the Regional Magistrate on 13 January 2023. In a nutshell,

the sentence imposed by the Regional Magistrate on 13 January 2023. In a nutshell,
at issue is whether the sentence imposed by the Regional Magistrate on the
respondent on 13 January 2023 was shockingly inappropriate in the circumstances
such that it should be set aside by this court and replaced with a more stringent
sentence, commensurate with the seriousness of the crime.

Background Facts

[8] Before I can give a succinct background on this matter, I must point out that, upon
reading the record of proceedings from the court a quo, we noted several procedural
irregularities that have contaminated and compromised the integrity of th ose
proceedings. I will address these irregularities later in this judgment when I consider
this appeal on the merits. As foreshadowed above, the respondent faced five counts
of fraud for under-declaring his annual taxable income when he submitted his annual
tax returns. On 29 July 2019, the respondent appeared before the Bellville regional
court 1, and the five charges levelled against him were put to him. The respondent,
who was legally represented, pleaded guilty to the five counts of fraud.

[9] A statement in terms of s 112(2) of the CPA was prepared and read into the
record. In the s 112(2) statement, the respondent admitted that he indeed defrauded
SARS and that he knew that if he submitted the whole amount of his gross income to
SARS, he would b e required to pay more tax and thus intentionally declared
amounts lower than his actual gross income to avoid paying tax owed to SARS in
respect of all five counts. He also admitted that when he completed and signed the
IRP5 forms for 2004 to 2008 and sub mitted his alleged gross income to SARS, he
knew that the information he had submitted was in fact false.

[10] The respondent stated that he did not want to disclose his actual gross taxable
income to SARS. After considering the matter , the legal and fac tual admissions the
respondent made, the court below was satisfied that the respondent admitted all the
elements of the offences he was charged with and correctly convicted him on the five
counts of fraud. After that, pre -sentence reports were submitted, w hich included
evaluations from both the correctional officer and the probation officer.

[11] In mitigation of sentence, the respondent’s attorney called the respondent to the

[11] In mitigation of sentence, the respondent’s attorney called the respondent to the
witness stand to testify. The respondent presented a detailed account of his personal
circumstances, emphasising the profound shame and trauma that the criminal case

had infl icted on him and his family. The State Advocate cross-examined the
respondent on the evidence he gave in mitigation, particularly his lack of remorse. In
response, the respondent disputed this and explained that he had no intention
whatsoever to deprive SARS or anyone of what is due to them. The respondent
raised a defence to the charges levelled against him, and the Regional Magistrate in
court 1 subsequently changed the respondent’s plea from guilty to not guilty in terms
of s 113 of the CPA. The reafter, the Regional Magistrate in regional court 1 recused
himself from the case and postponed the case to regional court 3. The Regional
Magistrate in court 1 further directed that the trial would start de novo before the
Regional Magistrate in regional court 3 in terms of the allocation.

[12] After several postponements and due to COVID -19 interruptions, the matter
eventually appeared before another Regional Magistrate in regional court 3. The
magistrate in court 3 invoked s 118 of the CPA and proceeded with the matter where
the previous magist rate left off. The matter did not start de novo as directed by the
Regional Magistrate in regional court 1. The respondent’s attorney instead prepared
admissions in terms of s 220 of the CPA, and after hearing the evidence of one
witness for the State, the Regional Magistrate in regional court 3 convicted the
respondent of the five counts of fraud. The defence submitted updated pre -sentence
reports and addressed the court in mitigation of sentence.

[13] The State, thereafter, led the evidence of Ms Francionette Basson, a SARS
criminal investi gator in aggravation of sentence . Ms Basson testified, amongst
others, that the respondent was living beyond his means. Ms Basson testified that,
as a registered tax consultant and as someone with a financial background, the
respondent should have acted in the interest of society and SARS. The witness
pointed out that the respondent could have paid the outstanding income tax when

pointed out that the respondent could have paid the outstanding income tax when
approached by SARS, as he had the necessary funds in his accounts, or could have
sold one of his properties, but elected not to d o so. Despite the respondent’s
knowledge that SARS was investigating his returns, the respondent purchased
expensive clothing, vehicles, and immovable propert ies and failed to declare his full
income, including rental income.

[14] Furthermore, the witness testified that the respondent misled the public by
indicating in his letterhead that he had a B Compt degree, whilst he knew that he did
not have such a degree. In conclusion, Ms Basson indicated that SARS was of the
view that dire ct imprisonment would be the appropriate sentence for this kind of
crime, given the length of time over which the respondent made no effort to submit
his outstanding returns and made no effort to pay his taxes due to SARS.

[15] After considering all the mitigating and aggravating factors, the Regional
Magistrate in court 3 imposed a wholly suspended sentence and correctional
supervision as stated in paragraph 3 above. It is this sentence that the State assails,
contending that it was shockingly lenient.

Discussion

[16] I am mindful that sentencing is pre-eminently a matter of the trial court's
discretion. (see S v Rabie 1975 (4) SA 855 (A) at 857D -F). I am also cognisant that
interference with a sentence on appeal is not justified in the absence of a material
misdirection or irregularity, or unless the sentence imposed is so startlingly
inappropriate as to create a sense of shock. S v Moosajee [1999] 2 All S A 353 (A),
para 8. Thus, the imposition of a sentence is the prerogative of the trial court. The
exercise of its discretion in that regard is not to be interfered with merely because an
appellate court would have imposed a heavier or lighter sentence.

[17] In S v Sadler 2000 (1) SACR 331 (SCA) para 7, the Supreme Court of Appeal
held that it must be recognised that the admonition discussed above cannot be taken
too literally and requires substantial qualification. The court observed that if it were
taken too literally, it would deprive an appeal against sentence of much of the social
utility it is intended to have. The court noted that where there exists a striking,
startling, or disturbing disparity between the trial court’s sentence and that which the

startling, or disturbing disparity between the trial court’s sentence and that which the
appellate court would have imposed, interference is justified. In such situations, the
trial court’s discretion is regarded as having been unreasonably exercised.

[18] In the present matter, it is common cause that the respondent was found guilty
of serious offences. The respondent planned and committed these offences over

several years. The tax returns the respondent filed were a perversion of the truth.
They were, to the knowledge of the respondent, false. Notwithstanding an
investigation by SARS officials, the respondent continued to provide false documents
to SARS as proof of his alleged low income. The State pointed out in its evidence in
aggravation of sentence that the respondent had, in the 2008 tax year, filed his tax
returns and declared that his gross income was R15 840. SARS subsequently
informed him that it was conducting an audit of his tax return, and the respondent
submitted a revised tax return, but still under-declared his gross taxable income.

[19] In addition, the respondent provided two different sets of i ncome for the 2005
and 2006 financial years. When he applied for a home loan, the respondent
indicated that his net profit for 2005 was R960 583 and for 2006 was R1027 447.
However, when he completed his returns to SARS, he stated that his net profit for
2005 was R56 358 and for 2006 was R64 955.

[20] What is highly concerning is that SARS informed the respondent of an audit of
his tax income on 13 May 2009. A letter of assessment from SARS, dated 25
November 2010, informed him that he owed SARS tax in the sum of R2 948 647.
Notwithstanding that, the respondent proceeded to purchase a BMW X5 on 28 May
2010 and a BMW X1 on 6 January 2011. The respondent owed SARS a cumulative
amount for the tax years 2004 to 2008, amounting to R1 168 447. 61. Ms Basson
from SARS explained to the trial court what the adjusted inflation amount was at the
time of sentencing. Her evidence was that with inflation, the amount of R1 168
447.61 had grown to R3 507 088.00. This did not include any penalties or interest,
which SARS could impose.

[21] Clearly, the respondent, as a registered tax consultant and as someone with a
financial background, should have acted responsibly and in the best interest of
society and the fiscus. The respondent owned several properties, some registere d in

society and the fiscus. The respondent owned several properties, some registere d in
his wife's name, who was unemployed. As correctly pointed out by Ms Hendry -
Sidaki, counsel for the appellant , the respondent could have paid back the
outstanding income tax when SARS approached him, as he had the necessary funds
in his account and could have sold one of his properties, but he elected not to do so.

[22] In my view, the court a quo was very sympa thetic to the respondent. The
sentence imposed by the court a quo was too lenient and failed to reflect the gravity
of the charges for which the respondent was convicted. It is important to emphasi se
that this was a ‘white-collar’ crime committed by the respondent, a registered tax
practitioner, over a period of five years. Marias JA in S v Sadler (Supra) at 335G -
336B, decried ‘white-collar’ crime and called for stiffer sentences to discourage
would be perpetrators.

[23] Significantly, fraud is a serious crime which has a corrosive impact on society.
Even if it is not a violent crime, it remains a serious offence that not only affects a
particular complainant but also the country’s economic growth. S v Nieuwenhuizen
(20339/14) [2015] ZASCA 90 (29 May 2015) para 12. More so, t he respondent’s
conduct was premeditated and persistent for five years. The money the respondent
defrauded SARS and the country at large is substantial. Clearly, the respondent
engaged in this criminal activity exclusively for personal gain, which, to me, reflects
avarice and nothing less. A wholly suspended prison sentence and correctional
supervision were, in my view, a strikingly inappropriate sentence.

[24] Concerningly, the court a quo noted that the respondent had not expressed his
remorse orally, but that his statement was evident to show that he was remorseful. In
my view, the court a quo erred in this regard. The fact that the respondent pleaded
guilty to all the charges does not automatically mean that he was genuinely
remorseful. The respondent had not heeded SARS's warnings to rectify his non -
compliant tax status. Instead, the responde nt ignored this plight and continued to
maintain a flamboyant lifestyle he could not afford. He purchased high-end vehicles
at a considerable expense rather than settling his outstanding tax liabilities.

[25] In S v Matyityi 2011 (1) SACR 40 (SCA) at par a 47, the court emphasised that

[25] In S v Matyityi 2011 (1) SACR 40 (SCA) at par a 47, the court emphasised that
before a court could find that an accused was genuinely remorseful, it needed to
have a proper appreciation of what motivated the accused to commit the deed; of
what had since caused a change of heart; and of whether he or s he had a true
appreciation of the consequences of his or her actions. For remorse to be a valid
consideration, the penitence must be sincere, and the accused must take the court
fully into his confidence. Unless that happens, the genuineness of contrition alleged

to exist cannot be determined. See S v Jiminez 2003 (1) SACR 507 (SCA) at 515; S
v Seegers 1970 (2) SA 506 (A) at 511G-H.

[26] In this case, the respondent did not testify and did not afford the court insight
into his contrition . Accordingly, there was no basis on which the court a quo could
find remorse on the part of the respondent. To this end, I agree with Ms Hendry -
Sidaki that if the respondent had true remorse after his initial arrest, it would have
been evident in his subsequ ent conduct. A genuine sense of contrition would have
led the respondent to become tax -compliant after his arrest, as evidenced by his
subsequent tax returns. On the contrary, the respondent did not file tax returns for
2009 to 2012 and did not submit returns from 2013 to 2022. I am mindful that he was
not charged for this tax period. However, his subsequent actions clearly demonstrate
a lack of sincere contrition on his part.

[27] In my view, the State’s evidence against the respondent was overwhelming and
therefore, the act of pleading guilty is negated as a mitigating factor. A plea of guilty
in the face of an open -and-shut case against an accused person is a neutral factor.
S v B arnard 2004 (1) SACR 191 (SCA) at 197. As foreshadowed above, the
respondent planned and committed these offences over a period of 5 years. The
respondent fraudulently and deceitfully reduced his tax liability by failing to disclose
his gross income, exagg erating his expenses, and presenting the same to SARS.
This, in my view, is a very serious offence. On a conspectus of all the evidence
presented, I am of the view that a wholly suspended prison sentence was lenient and
strikingly inappropriate. But for the gross irregularities highlighted hereunder, I would
have proposed a sentence of direct imprisonment.

Gross irregularities vitiating the entire proceedings of the court a quo

[28] As foreshadowed above, the trial proceedings at the court a quo are riddled with

[28] As foreshadowed above, the trial proceedings at the court a quo are riddled with
gross irregularities that contaminated the entire proceedings. I turn to deal with these
irregularities numerically. First, the Regional Magistrate in regional court 1, who
heard the matter for the first time, entered a plea of not guilty in terms of s 113 of the
CPA after the respondent raised a defence during mitigation of sentence. The
Regional Magistrate in regional court 1 subsequently recused himself from the

proceedings and directed that the matter should start de novo before another
Regional Magistrate in court 3. It is not clear from the record what led the Regional
Magistrate in court 1 to recuse himself from the proceedings after meeting the
respondent’s legal representative and the State Advocate in chambers.

[29] At the hearing of this appeal, the State Advocate who was involved in the matter
at the trial court advised this court that the presiding officer in regional court 1
recused himself because he was appraised or had sight of the admissions the
respondent made as detailed in his statement in terms of s 112(2) of the CPA and
did not want to prejudice the respondent in doing the trial. With respect, I do not
agree with this proposition. For completeness s 113(1) of the CPA provides:

‘If the court at any stage of the proceedings under section 112(1)(a) or (b) or 112(2)
and before sentence is passed is in doubt whether the accused is in law guilty of the
offence to which he or she has pleaded guilty or if it is alleged or appears to the court
that the accused does not admit an allegation in the charge or that the accused has
incorrectly admitted any such allegation or that the accused has a valid defence to
the charge or if the court believes for any other reason that the accused’s plea of
guilty should not stand, the court shall record a plea of not guilt y and require the
prosecutor to proceed with the prosecution: Provided that any allegation, other than
an allegation referred to above, admitted by the accused up to the stage at which the
court records a plea of not guilty, shall stand as proof in any cou rt of such allegation.’
(emphasis added)

[30] It is common cause that the respondent gave evidence in mitigation. On the
strength of his evidence on cross -examination by the State Advocate, the Regional
Magistrate had doubts as to whether the respondent was guilty of the offence to
which he had pleade d guilty and accordingly recorded a plea of not guilty. Simply

which he had pleade d guilty and accordingly recorded a plea of not guilty. Simply
put, the respondent raised a defence which triggered the application of the
procedure laid down in s 113. Once the plea of guilty was changed to not guilty, the
Regional Magistrate in regional court 1 was bound to proceed with the trial. Section
113 expressly provides for the continuation of the matter before the judge or
magistrate before whom the accused pleaded guilty. (see S v Moses 2019 (1) SACR
75 (WCC) at para 32 ). This much foll ows from the words in s 113(1) that upon

altering the plea, the court shall 'require the prosecutor to proceed with the
prosecution'. In other words, the presiding officer before whom the accused pleaded
guilty must proceed with the trial of the accused.

[31] The fact that the accused’s previous convictions had been disclosed to the court
after he was convicted pursuant to his guilty plea is inconsequential. Notwithstanding
that the court had sight of the accused’s previous convictions, it does not bar the
judge or the magistrate from proceeding with the trial after a plea of not guilty is
entered in terms of s 113 of the CPA. The full bench of this division observed in S v
Moses (supra), that the legislature must have appreciated, when it provided that the
alteration of the plea might be allowed at any time before sentence was imposed,
that that might be after the disclosure of the accused's previous convictions. If the
legislature had in tended that in such circumstances the prosecutor should proceed
with the prosecution before a different judicial officer, it would surely have said so as,
for example, it did in s 105A(6)(c) and 105A(9)(d).

[32] As stated above, there is nothing on recor d that justified the recusal of the
Regional Magistrate . Furthermore, there was no application whatsoever that was
made by any of the parties requiring the Regional Magistrate in court 1 to recuse
himself. A presiding officer's recusal from a case must be based on valid, reasonable
grounds, in general involving a conflict of interest, personal bias, or a reasonable
apprehension of bias by an objective observer. In President of the Republic of South
Africa v South African Rugby Football Union 1999 (4) SA 147(CC) para 48, it was
stated:

‘It must be assumed that they can disabuse their minds of any irrelevant personal
beliefs or predispositions. They must take into account the fact that they have a duty
to sit in any case in which they are not obliged to recuse themselves. At the same

to sit in any case in which they are not obliged to recuse themselves. At the same
time, it must never be forgotten that an impartial judge is a fundamental prerequisite
for a fair trial and a judicial officer should not hesitate to recuse herself or himself if
there are reasonable grounds on the part of a litigant for apprehending that the
judicial officer, for whatever reasons, was not or will not be impartial.’ (emphasis
added)

[33] In my opinion, in the circumstance of this case, it was irregular for the Regional
Magistrate in regional court 1 to recuse himself.

[34] Secondly, when the Regional Magistrate in regional court 1 recused himself, he
ordered that the matter should start de novo before another presiding officer. I must
emphasise that i t was legally impermissible for the Regional Magistrate to make
such an order. It is trite that a magistrate's court is a creature of statute and,
accordingly, its powers are limited to those conferred upon it by statute. Santam
Insurance Co Ltd v Liebenberg NO and Another 1976 (4) SA 312 (N) at 323H. There
is no statutory authority for a magistrate to order that the trial should be instituted de
novo before another court. Accordingly, where such a declaration is required, the
matter should be referred to t he High Court for the setting aside of the proceedings
and a direction that the hearing of the matter should proceed de novo . S v
Mbothoma en 'n Ander 1978 (2) SA 530 (O) at 533.

[35] The only power that is vested upon a magistrate's court to order that
proceedings commence afresh are those contained in s 93 ter(11)(a)(bb) of the
Magistrates Act 32 of 1944 as amended, which provides that if the assessor dies or
in the opinion of the presiding officer becomes unable to act as an assessor at any
stage b efore the completion of the proceedings concerned, the presiding judicial
officer may, in the interests of justice and after due consideration of the arguments
put forward by the accused person and the prosecutor direct that the proceedings
continue before the remaining member or members of the court or direct that the
proceedings start afresh. That section does not apply to the facts of the present
case. Accordingly, the Regional Magistrate in Court 1 lacked the statutory authority
to order that the procee dings be conducted de novo before another magistrate.
Since that order is incompetent, the subsequent proceedings before the Regional

Since that order is incompetent, the subsequent proceedings before the Regional
Magistrate in court 3 were a nullity.

[36] This was confirmed in S v Richter 1998 (1) SACR 311 (C), where the magistrate
could not continue with the trial after becoming aware of the accused's previous
convictions. She ordered that the matter be heard de novo before another court. The
magistrate's order was held to be an irregular ity, as there is no statutory authority for
a magistrate to order that the trial be instituted before another court. The court

emphasised that where such a declaration is required, the matter should be referred
to the High Court for the setting aside of the proceedings.

[37] However, I must emphasise that an exception to the above is where there is a
supervening impossibility, as was the case in S v Stoffels and 11 Similar Cases 2004
(1) SACR 176 (C), where a presiding magistrate recused himself as he faced a
charge of murder and was provisionally suspended from office by the Magistrates
Commission. Such recusal constituted an absolute supervening impossibility which
nullified the proceedings.

[38] Thirdly, when the matter appeared before the Regional Magistrate in regional
court 3, the presiding officer of that court invoked s 118 of the CPA and proceeded
with the matter, notwithstanding that evidence had been led before the original
magistrate. I t must be stressed that it was not open to the Regional Magistrate in
court 3 to invoke s 118 of the CPA in such circumstances. Section 118 of the CPA
provides that:

‘If the judge, Regional Magistrate or magistrate before whom an accused at a
summary trial has pleaded not guilty is, for any reason, not available to continue with
the trial and no evidence has been adduced yet , the trial may be continued before
any other judge, regional magistrate or magistrate of the same court .’ (emphasis
added)

[39] The wording of this section makes it abundantly clear that it is limited in
application. Firstly, it is confined to a plea of not guilty and secondly, it cannot be
invoked once evidence has been adduced. The section is not intended to apply in
instances where the accused pleaded guil ty. The purpose of s 118 of the CPA is to
cater for situations where the judicial officer becomes unavailable after the plea, but
before evidence has been led. Bearing in mind that it is always in the interest of
justice that the trial should commence and be finalised speedily before the same
magistrate who takes the plea, the section ensures that a plea explanation, if any, is

magistrate who takes the plea, the section ensures that a plea explanation, if any, is
taken at an early stage by one magistrate, and that the actual trial can commence
before a different magistrate if the original mag istrate is unavailable . David v
Regional Court Magistrate & Others 2018 (1) SACR 702 (ECB), paras 19 and 21.

[40] In my view, s 118 must only be invoked where the original presiding officer is
objectively unavailable, as it is extremely desirable that a trial should be commenced
and completed before the same judicial officer. In the present matter, it cannot be
said that the original presiding officer was objectively unavailable to continue with the
trial.

[41] The Regional Magistrate of Court 1 recused himself and ordered that the matter
start de novo. This ruling was made after evidence in mitigation of sentence was led.
When the matter appeared before the Regional Magistrate in court 3, the respondent
was not asked to plead, and the matter proceeded putatively in terms of s 118. In her
judgment on th e merits, the Regional Magistrate in court 3 considered the
admissions the respondent made before her in terms s 220 of the CPA, as well as
the admissions the respondent made in his statement in terms of s 112(2) of the
CPA before the Regional Magistrate who recused himself and convicted the
respondent accordingly. In my view, it was grossly irregular and impermissible for the
Regional Magistrate in court 3 to proceed with the trial in terms of s 118 of the CPA.

[42] At the hearing of this appeal, b oth counsels for the State and the respondent
after serious engagement with the court, conceded that it was impermissible for the
Regional Magistrate in court 3 to invoke s 118 of the CPA in the circumstances of
this case. In any event, the order made by the Regional Magistrate in court 1
directing the matter to start de novo was legally incompetent, vitiating subsequent
proceedings. Consequently, the proceedings before the Regional Magistrate in court
3, which ultimately led to the sentencing of the respondent, were a nullity.

[43] It is accordingly necessary that the proceedings before the two Regional
Magistrates in relation to this matter, in so far as this may be necessary, be set aside
and that the matter be re mitted to the Regional Court to be heard de novo before

and that the matter be re mitted to the Regional Court to be heard de novo before
another Regional Magistrate.

[44] I am mindful that the respondent may have served his sentence . Should the
Director of Public Prosecutions decide to press charges against the respondent
again, and the respondent pleads guilty and is properly convicted, the trial court

should consider the sentence he has already served. S v Ndzishe & another 2023
(2) SACR 419 (WCC) para 30.





Order

[45] In the result, I would propose the following order:

45.1 The proceedings of the court below are hereby set aside.
45.2 The conviction and sentence are hereby set aside.
45.3 The matter is remitted back to the regional court, Bellville, for trial before
another Regional Magistrate, if the Director of Public Prosecutions still wishes to
pursue charges against the respondent.

___________________________
LEKHULENI J
JUDGE OF THE HIGH COURT

I agree, and it is so ordered:


_____________________________
ERASMUS N
JUDGE OF THE HIGH COURT



APPEARANCES

For the State: Adv Hendry-Sidaki
Instructed by: The Director of Public Prosecutions

For the Respondent: Adv Erasmus
Instructed by: CTC Stander and Associates

Back to Law Reports