IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, BHISHO)
Case No. CA&R 1/2026
Case reference. RCZ 247/2024
Magistrate’s serial No. 4/2025
OF INTEREST
THE STATE
and
PURITY MARAVA
CRIMINAL REVIEW JUDGMENT
HARTLE J
[1] The matter came before us as a special review in terms of the provisions of
section 304 (4) of the Criminal Procedure Act, No. 51 of 1977 (“CPA”).
[2] A magistrate of the Regional Court, Zwelitsha, convicted the accused (a first
time offender) of contravening the provisions of section 3 (1) of the Criminal
Matters Amendment Act, No. 19 of 2015 (“CMAA”) on the basis of his guilty
plea.
[3] The sub-section, read with sections 1 and 3 (2) of the CMAA, criminalizes
the tampering with, or damaging or destruction of, essen tial infrastructure. In this
instance the accused was alleged, quite unspecifically, to have tampered with or
damaged or destroyed a MTN cell phone tower to the value of R60 000.00.
[4] The charge read:
“IN THAT upon or about the 25/4/2024 and at or near Tolofiyeni in the District/Regional
Division of Eastern Cape, the accused did unlawfully and intentionally tamper with
and/or damaged and/or destroyed essential infrastructure, to wit MTN Tower the property
of MTN value R60 000.00 whereas he/she/they knew or ought to have known or
suspected that the said MTN Tower were essential infrastructure.”
[5] Apart from creating a new offence relating to essential infrastructure, it is
quite evident from the object of the CMAA and preamble respectively that the
statutory offence of damaging or interfering with essential infrastructure is
regarded in a serious light.
[6] Essential infrastructure is the wherewithal through which basic services
relating to energy, transport, water, sanitation and - in this context, communication,
are provided to the public. The CMAA recognises that any interference with these
basic services by the loss or damage to the applicable installation, structure,
facility or system constituting the infrastructure, will be deleterious to the public 's
interest and to the economy of our country. The act gives recognition in its
preamble to the harmful consequences to the livelihood of the public, their well -
being, and the daily operations and economic activity in our country in scenarios
where the enu merated basic essential services cannot be rendered due to loss,
damage, or disruption caused by essential infrastructure -related offences. The
preamble also recognises the unacceptably high incidence of crime relating to
essential infrastructure, compound ed by the fact that such offences are becoming
increasingly more organised and perpetrated by armed and dangerous criminal
groups.
[7] As an aside, it was never suggested by the State that this was one of those
grave situations leaning towards organized crim e, but the CMAA also recognises
that even minor offences in relation to essential infrastructure can cause
considerable damage to the particular installation, structure, facility, or system,
leading by ripple effect to other harmful negative impacts to the economy and
society, and ultimately possibly even affecting peace and stability in our country.1
1 See for example Mokoena v S (A139/2023) [2025] ZAGPPHC 132 (18 February 2025) at [9] in which the point is
made that the gravamen of the offence is in the potential harm that can be caused by its mere commission, especially
recognized in the preamble to the CMAA. See also Buthelezi & Others v State [2022] ZAGPPHC 444 as to the
serious nature of the offence, at paragraph [15] of the judgment.
[8] It is therefore quite unsurprising that a person’s conviction of an essential
infrastructure-related offence attracts the imposition of the discretionary minimum
sentences for convictions under the acts’ provisions.
[9] The CMAA labels the offence as a “ serious” one resorting under Part II of
Schedule 2 to the Criminal Law Amendment Act, No. 105 of 1977 (“CLAA”)
which provides, concerning the imposition of the minimum mandatory sentences
applicable to the relevant class of serious offence concerned, as follows:
“51. Discretionary minimum sentences for certain serious offences
(1) ….
(2) Notwithstanding any other law but subject to subsections (3) an d (6), a regional court
or a High Court shall sentence a person who has been convicted of an offence
referred to in—
(a) Part II of Schedule 2, in the case of—
(i) a first offender, to imprisonment for a period not less than 15 years;
(ii) a second offender of any such offence, to imprisonment for a period not
less than 20 years; and
(iii) a third or subsequent offender of any such offence, to imprisonment for a
period not less than 25 years;
(b) …
(c) …
(d) …
Provided that the maximum term of imprisonment that a regional court may impose in
terms of this subsection shall not exceed the minimum term of imprisonment that it must
impose in terms of this subsection by more than five years.”
[10] The accused was evidently properly informed of the import of the
discretionary minimum sentencing provisions before pleading to the charge as
appears from a transcript of the plea proceedings. The magistrate sentenced him to
eight (8) years imprisonment, but in terms of the provisions of section 276 (1)(i) of
the CPA. One gets the impressi on that he did so hoping to minimize the total
period of direct imprisonment that the accused would be expected to serve after
recognizing that substantial and compelling circumstances existed in his favour
which justified an appropriate deviation from the minimum mandatory sentence he
was expected to impose upon him for such a serious offence.
[11] Thereupon he referred the matter to this court as a special review to set aside
the sentence. The reason for doing so was recorded by him in the submissions
giving cover to the record of the proceedings as follows:
“3. REASONS FOR SENTENCE
The proceedings were also mechanically recorded and in passing sentence I considered
the Zinn triad and considered the interests of the accused; interests of the society and al so
considered the seriousness of the offence.
Also looking at the circumstances of this case I was of the view that it will not be in the
interests of justice that the minimum sentence be imposed and further considered that
here were compelling and substan tial circumstances warranting the court to deviate from
the
prescribed minimum sentence and I then invoked the provisions of Section 51 (3)(a) of
Act 105 of 1997 2 and sentenced the accused to an effective term of eight years
imprisonment in terms of Section 276 (1)(i) of Act 51 of 1977.
It is in respect of this sentence that I am now bringing this review application that the said
sentence be set aside and that the matter be remitted back to the Regional court so that an
appropriate sentence be considered as I later learnt that a sentence in terms of that section
cannot exceed a period of five (5) years.”
2 Section 51 (3)(a) of the CLAA provides as follows:
(a) If any court referred to in subsection (1) or (2) is satisfied that substantial and compelling circumstances exist
which justify the imposition of a lesser sentence than the sentence prescribed in those subsections, it shall enter
those circumstances o n the record of the proceedings and must thereupon impose such lesser sentence. (There is a
proviso to this sub-section, but it does not apply to the facts of this review.)
(Emphasis added.)
[12] Whilst one can discern from the record what factors influenced the
magistrate in the direction of finding the existence of substant ial and compelling
circumstances, he appears to have been under the mistaken impression that a
sentence of correctional supervision pursuant to the provisions of section 276 (1)(i)
of the CPA was a competent sentence to impose upon the accused, the only is sue
arising in his perception bearing upon the limitation on the period for which such a
sentence could be imposed.
[13] Section 276 (1) of the CPA provides for the kinds of sentence that are passed
upon a person convicted of an offence. The section includes the option of:
“(i) imprisonment from which such a person may be placed under correctional supervision in the
discretion of the Commissioner or a parole board.”
[14] Section 276 A (3) (a) of the CPA provides that such a sentencing option can
only be imposed in circumstances where the period of imprisonment imposed by
the sentencing court does not exceed five years.
[15] It is presumably on this basis that the magistrate thought he had erred, but he
appears to have missed the more important provisions of sections 276 (3) of the
CPA relative to the peculiar circumstances of this matter that has its own unique
proviso in mind. This sub-section provides as follows:
“(3) Notwithstanding anything to the contrary in any law contained, other than the
Criminal Law Amendment Act, 1997 (Act 105 of 1997), the provisions of subsection
(1) shall not be construed as prohibiting the court—
(a) from imposing imprisonment together with correctional supervision; or
(b) from imposing the punishment referred to in subsection (1)(h) or (i) in respect
of any offence, whether under the common law or a statutory provision,
irrespective of whether the law in question provides for such or any other
punishment: Provided that any punishment contemplated in this paragraph
may not be i mposed in any case where the court is obliged to impose a
sentence contemplated in section 51(1) or (2), read with section 52, of the
Criminal Law Amendment Act, 1997.”
(Emphasis added)
[16] What is evident from the proviso above is that the sentence option made
possible by the provisions of section 276 (1)(i) of the CPA is not a sentence for
purposes of section 3 of the CMAA by virtue of the fact that such an offence
resorts firmly under the minimum sentencing provisions of the CLAA. The starting
proposition is that such an offence by its accepted statutorily endorsed gravity must
attract a minimum sentence of not less than 15 years direct imprisonment (in the
case of a first offender at least), unless substantial and compelling circumstances
exist which justify a departure from that benchmark.3
[17] For this reason the sentence falls to be set aside.
[18] Ideally such an irregularity would warrant the referral of the incompetent
sentence back to the magistrate to re -engage with what an appropriate sentence is
in all the circumstances, in this instance with a reminder to him of the obligation
cast upon a court by the provisions of section 51 (3) of the CLAA to “ enter” those
substantial and compelling circumstances found “ on the record of the
3 See S v Malgas (117/2000) [2001] ZASCA 30; [2001] 3 All SA 220 (A); 2001 (2) SA 1222 (SCA); 2001 (1)
SACR 469 (SCA) (19 March 2001).
proceedings”.4 Another irregularity, however, appears from the record that
requires a different outcome.
[19] A statement in terms of the provisions of section 112 (2) of the CPA was
tendered by the accused and accepted without reservation by the State.
[20] In it the accused acknowledged being aware of the charge and agreed that
the consequences of his pleading guilty had been explained to him by his attorney,
no doubt confirming an appreciation that the minimum sentencing provisions were
of application.
[21] He asserted in his p lea that the offence had been committed under the
following circumstances:
“On the day of the incident, I was called by my friend to come assist him with something.
I did not ask what at the time, he then told me his location. I then went to him and on my
arrival he was near the MTN tower and was carrying (an) iron bar. He then as ked me to
assist him in entering the tower. We then use the iron bar to break the gate of the tower.
As we were doing that the security guard came and we were arrested.
At the time the security guard arrived, we had already damaged the gate of the tower.”
[22] His plea concludes with the statement that: “ At all material times I knew my
actions were unlawful and wrongful.”
[23] The magistrate expressed his satisfaction that the accused in his plea had
admitted to all the allegations as contained in the charge sheet which was at the
4 Malgas, Supra, at [9].
same time tantamount in his view to an admission of all the elements of the
offence.
[24] Section 3 (1) of the CMAA provides as follows in respect of the offence
relating to essential infrastructure:
“Offence relating to essential infrastructure
3. (1) Any person who unlawfully and intentionally—
(a) tampers with, damages or destroys essential infrastructure; or
(b) colludes with or assists another person in the commission, performance or carrying out of an
activity referred to in paragra ph (a), and who knows or ought reasonably to have known or
suspected that it is essential infrastructure, is guilty of an offence and liable on conviction to a
period of imprisonment not exceeding 30 years or, in the case of a corporate body as
contemplated in section 332(2) of the Criminal Procedure Act, 1977, a fine not exceeding R100
million.”
[25] This must in turn be read with the definitions in section 1 of the CMAA as
follows:
“Definitions
1. In this Act, unless the context indicates otherwise—
‘‘basic service’’ means a service, provided by the public or private sector, relating to energy,
transport, water, sanitation and communication, the interference with which may prejudice
the livelihood, well-being, daily operations or economic activity of the public;
‘‘essential infrastructure’’ means any installation, structure, facility or system, whether
publicly or privately owned, the loss or damage of, or the tampering with, which may
interfere with the provision or distribution of a basic service to the public; and
‘‘tamper’’ includes to alter, cut, disturb, interfere with, interrupt, manipulate, obstruct,
remove or uproot by any means, method or device, and ‘‘tampering’’ shall be construed
accordingly.”
[26] Section 3 (2) of the CMAA also requires mention as it goes to the issue of
the offender’s guilt:
“(2) For the purposes of subsection (1), a person ought reasonably to have known or suspected a
fact if the conclusions that he or she ought to have reached are those which would have been
reached by a reasonably diligent and vigilant person having both—
(a) the general knowledge, skill, training and experience that may reasonably be expected of a
person in his or her position; and
(b) the general knowledge, skill, training and experience that he or she in fact has.”
[27] It is immediately evident from the foregoing that the plea did not engage
fully with all the essential elements of the statutory offence more especially the
question whether the gate to the tower constituted essential infrastructure within
the meaning of the definition and whether the accused had the requisite knowledge
when making himself complicit with the undisclosed co-perpetrator in breaking the
gate that he knew that he was damaging a functional part to the essential
infrastructure, or that he ought reasonably to have known or suspected as much.5
[28] Whereas the proviso to section 112 (2) of the CPA permits a court engaging
with a statement submitted to it under its provisions in support of a plea of guilty
to put any question to the accused in order to clarify any matter raised therein, it
was highlighted during sentencing arguments for the first time that the accused
“only damaged the gate of the tower”.
[29] The court seized upon this aspect during the State’s submissions, noting that
the charge sheet did not reflect upon the damage to the gate itself. Indeed the
prosecutor noted in this respect that he had made a mistake.
[30] The court prised open the uncertainty as follows:
5 See, for example, Cetyiwe v S [2025] ZAECMKHC 27 at [24] and [26].
“COURT : … from the statement by the accused with regards to the fence under which
the offence was committed it is said that the gate was damaged and unfortunately we do
not have a value of the damage, only the value of the tower which was not even damaged.
PROSECUTOR : We do not have the value of the gate, Your Worship. We only have the
value of the tower that was about to be damaged by the accused person. They were
inside the tower, already damaged the gate.
COURT : So, do you think now ten years ’ direct imprisonment will be proportionate to
damage to a gate which we do not even having the value of the damage”
PROSECUTOR : No, Your Worship. I would invite the Court with the intention that
they intended to so. The sentence … [intervenes]”
COURT : Through it was not fulfilled.
PROSECUTOR : The sentence, Your Worship, is to deter the other members not to
commit the same offence.
COURT : But must he be sacrificed to that while … [indistinct] deterrence?
PROSECUTOR : Your Worship, the sentence is on t he court to decide, but the State
would submit that it attract … [intervenes]
COURT : Yes, but you have to assist the Court to come to a just sentence.
PROSECUTOR : Your Worship, this offence attract a minimum sentence of fifteen years
for the first offender, so if the Court deviate it would deviate at least five years is being a
deviation from that, but now it has to consider the whole circumstances under which the
offence was committed, because if the accused, if one member was never the alarming
the security officer worst have happened, so the whole community would have suffered.
At those towers must be mind that they are for cell phone benefits. They affect everyone.
They affect the network. That is my submission, Your Worship.”
[31] In the court’s sentencing judgment the magistrate prefaced his verdict by the
remark that the accused would be sentenced based on what was contained in his
section 112 (2) statement “ which was accepted by the State ”. One of the
section 112 (2) statement “ which was accepted by the State ”. One of the
implications thereby is that the charge sheet ha d inaccurately reflected the damage
to the infrastructure to be in the sum of R60 000,00 which quite plainly is the
value of the cellular tower itself. Even though the accused’s plea said nothing of
the extent of the damage or what part of it he was prep ared to take responsibility
for, the discrepancy immediately highlighted an anomaly, which is that the State
and the accused were at cross purposes regarding both the subject of the damage
and the accused’s intention by assisting his co-perpetrator in breaking the gate. The
magistrate picked up on the import of this predicament as follows:
“We know that the offence that the accused person has been convicted of is a very serious
offence and the Court has to consider that. Although the accused has been found guilty
of tampering with essential infrastructure, looking at the circumstances the accused
person never tampered with that infrastructure, but he had intentions to do so and
therefore it would be absurd to convict someone for what he has intended to do but not
sentencing him for his actual act, because if the accused person actually committed the
offence as alleged the minimum sentence in respect of a first offender is fifteen years.”
[32] Although the magistrate ultimately reckoned with the fact that th e nature of
the damage caused by breaking open the gate reduced the accused’s moral
blameworthiness materially when compared to direct interference with operational
infrastructure, it is clear from the excerpt above that he entertained doubt whether a
complete offence had been committed in the circumstances, prompted by the
reality of a distinction between the gate and the cellular tower itself. 6 In such an
instance he should have invoked the power available to him in terms of the
provisions of section 113 (1) of the CPA to order that the plea no longer stand and
that this issue (and indeed the question of the guilt of the accused which was not
dealt with adequately in the statement) be proven by the State upon trial.
[33] In the magistrate’s reasons for the conviction, which he set out in his
submissions upon review, it appears that he assumed that the gate that was
damaged formed part of the essential infrastructure. While such a proposition is
arguable, namely that the gate forms a functional part of the e ssential
6 See Buthelezi, Supra at [7] in which the court found that the appellants had attempted to contravene section 3 (1) of
the CMAA by digging a hole above a Telkom cable.
infrastructure, the accused must have known this, or reasonably knew or suspected
that he damaged “essential infrastructure” (within the definition in section 1 of the
CMAA), which might interfere with the provision or distribution of a basic serv ice
to the public. This does not appear from the admitted facts in his section 112
statement.
[34] As reflected in Mokoena v S 7 the gravamen of the offence is less about the
value of the objective damage than it is concerned with the potential for serious
harm by the commission of the offence. It is the tampering
alternatively damaging alternatively destroying of essential infrastructure that
constitutes the crime as appears from the reasons for the enactment of the CMAA.
That damage could be objectively minimal, yet devastating in the whole scheme of
things.
[35] It is important that an accused pleading guilty to such an offence must be
clear that that he knew (or ought reasonably to have known or suspected) that
essential infrastructure within the meaning o f the definition in section 1 of the
CMAA was in the reckoning, and that his acquiescence of such fact, regardless of
the extent of the damage caused, is what is going to bring him within the purview
of the minimum sentencing provisions. All of these ess ential elements of the
statutory offence must be cohesively addressed in the section 112 (2) statement.8
[36] In my view it is appropriate that the matter be referred back to the magistrate
for the matter to take its course pursuant to the provisions of secti on 113 (2) of the
CPA.
7 Supra, at [9].
8 See Sele v S [2025] ZANWHC 159 for an example of such a plea at [2], and further comment at [6].
[37] In the result the following order issues:
1. The conviction and sentence imposed by the Regional Court
magistrate against the accused on 21 November 2024 are set aside.
2. The matter is referred back to the Magistrate for the trial to proceed on
the basis provided for in section 113 (2) of the Criminal Procedure
Act, No 51 of 1977.
________________
B. HARTLE
JUDGE OF THE HIGH COURT
I AGREE:
________________
T NKELE
ACTING JUDGE OF THE HIGH COURT
DATE OF JUDGMENT: 10 February 2026