REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NUMBER: A47/2024
CASE NUMBER A QUO: SH86/2013
In the matter between: -
MASHAU KHATHUTSHELO Appellant
and
THE STATE
Respondent
JUDGMENT
___________________________________________________________________
Mfenyana J:
[1] This is an appeal against the conviction and sentence imposed on the
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
DATE SIGNATURE
appellant by the Regional Court in Boksburg. The appellant was
convicted on 21 counts of fraud (Counts 1 to 21) and one count of
contravening section 6(a) read with sections 1, 8 and 76 of the
Prevention of Organised Crime Act (POCA)1, alternatively,
contravention of section 6(b) read with sections 1, 8 and 76 of the
same Act (count 22), having pleaded not guilty to all charges.
[2] He was sentenced to a total of 153 years in respect of counts 1 to 21.
The sentences in counts 1,3, 4, 5, 7, 11, 12,13, 17,19 and 20 were
ordered to run concurrently with the sentence of 12 years in respect of
count 8.
[3] The sentences in counts 2, 6, 10, 14, 15, 16, 18 and 21 were ordered
to run concurrently with the 13 -year sentence in respect of count 9,
computing to 13 years.
[4] He was sentenced to 15 years in respect of count 22.
[5] He was sentenced to an effective 40 years’ imprisonment, inadvertently
referred by the court a quo as 48 years.
[6] He filed an application for leave to appeal against his conviction in
respect of count 22 and the sentence imposed. The court a quo
granted him leave to appeal. This appeal lies against his conviction on
count 22 and the total sentence imposed.
[7] In granting leave to appeal, the court a quo noted that in view of this
calculation error, the appellant enjoys reasonable prospects of success
on appeal.
Ad conviction
[8] In the notice of appeal, the appellant contends that the court a quo
1 Act 121 of 1998.
erred in convicting him on count 22, as it constitutes a duplication of the
charges in counts 1 to 21 and, as such, the state proved only a single
intent.
[9] In the heads of argument filed on behalf of the appellant, it is submitted
that counts 1 to 21 comprised fraud allegations to a total amount of
R573 839.67, while count 22 relates to a contravention of section 6(a)
of POCA to the amount of R573 839.67 . The appellant committed
these offences knowing that the proceeds formed part of unlawful
activities, for which he was convicted on counts 1 to 21. He contends
that the elements required to sustain a conviction on count 22 are the
same as those required to sustain a conviction on the fraud charges.
[10] The appellant relies on the decision of the Supreme Court of Appeal
(SCA) in Ditlhakanyane2 to argue that the court must use a common -
sense approach by examining the evidence whether the evidence
required to sustain a conviction on the one count is exactly the same as
the evidence required to sustain a conviction on another count. If the
answer to that question is in the affirmative, then there is a duplication
of convictions3.
[11] In respect of sentence, the appellant avers that the court a quo did not
attach sufficient weight to the mitigating factors presented in his favour
and did not blend its decision with an element of mercy. It further did
not consider his prospects of rehabilitation and correctional supervision
in terms of section 276(1) of the Criminal Procedure Act4.
[12] He contends that his personal circumstances were investigated by the
probation officer and placed before the trial court, together with the
nature of the offence and the interests of society. In this regard, the
court a quo was informed that the appellant was 39 years old, a first
offender, married with two minor children born from his marriage, and a
2 S v Ditlhakanyane 2025(2) SACR 221 (SCA.
3 Id para 26.
4 Act 51 of 1977.
well-established businessman with 30 permanent employees. He had
spent approximately 5 months in prison, awaiting trial and had suffered
immense emotional strain and the financial burden associated with
payment of legal fees.
[13] He further asserts that he is prepared to take responsibility for his
criminal conduct and remedy the prejudice caused to the complainant.
As a first offender, it was submitted, the appellant ought to have been
treated with mitigation, as this was his only offence, “which may imply
that he is not a criminal as such, and therefore not likely to repeat the
crime”.5
[14] Citing S v Rabie6, the appellant avers that “true mercy has nothing to
do with soft weakness or maudlin sympathy with the criminal, or
permissive tolerance… (but) is an element of justice itself.”
[15] On behalf of the respondent, it was conceded that the court a quo erred
in calculating the effective term of imprisonment, arriving at 48 years
instead of 40 years.
[16] Regarding the duplication of convictions, the respondent submits that
where an accused person has committed one offence, it should not be
split up and charged as several offences. The respondent relies on
various decisions of the SCA in support of this principle. In essence,
the respondent makes common cause with the appellant in this regard.
[17] The respondent, however, contends that the elements required to
prove the crime of fraud are not intertwined with the elements required
to prove the POCA offence s and thus do not amount to duplication of
convictions. In support of this contention, counsel argued that the
POCA offences are premised on the existence of a predicate offence,
in this case, fraud. He further argues that POCA is designed ‘to ensure
that parties do not benefit from the criminal activities of another, and to
5 S v Saunders 1984 (2) SA (A) 102.
6 1975 (4) SA 855 (A).
penalise one’s participation or involvement in furthering the interests of
the main perpetrator by reaping the benefits after the fact, and enabling
another to evade justice by laundering the ill -gotten gains through
possession, acquisition or usage thereof’.
[18] This is indeed the position, as contained in the preamble to POCA. I
understand the respondent to be saying that fraud is distinct from the
acquisition and use of the proceeds of the fraud . It is not. This
argument is irrelevant to the appellant to the extent that it concerns the
acquisition and use of the proceeds of a crime after the fact, as the
appellant is the main perpetrator of the fraud.
[19] Section 6 envisages a situation where another person acquires, uses
or possesses property in relation to an offence committed by another
person (the main perpetrator). It provides:
“ 6. Any person who –
(a) acquires;
(b) uses; or
(c) has possession
of property and who knows or ought reasonably to have known that it is
or forms part of the proceeds of unlawful activities of another person ,
shall be guilty of an offence.”
- my emphasis
[20] There can therefore be no doubt that in committing the fraud, the
appellant acquired the proceeds of the fraud. This is a single act with a
single intent . By its nature, fraud is an act of dishonesty intended to
permanently deprive an owner of their property. Separating the
acquisition of the proceeds and the appellant’s use thereof from the
fraud amounts to duplication and the ‘splitting of a single offence into
several offences ’, which the respondent refers to in its heads of
argument.
[21] Our law prohibits the conviction and sentencing of an accused person
in respect of two crimes when they have committed only one offence. 7
Section 336 of the Criminal Procedure Act (“the CPA”)8 provides:
“Where an act or an omission constitutes an offence under two or more
statutory provisions or is an offence against a statutory provision and the
common law, the person guilty of such act or omission shall, unless the
contrary intention appears, be liable to be prosecuted and punished under
either statutory provision or, as the case may be, under the statutory provision
of the common law, but shall not be liable to more than one punishment for
the act or omission constituting the offence”.
[22] In S v BM9, the SCA noted that:
“ It has been a rule of practice in our criminal courts since at least 1887 that
where the accused has committed only one offence in substance, it should
not be split up and charged against him in one and the same trial as several
offences’. The test is whether, taking a common sense view of matters in the
light of fairness to the accused, a single offence or more than one has been
committed. The purpose of the rule is to prevent a duplication of convictions
on what is essentially a single offence and, consequently, the duplication of
punishment.”
[23] The question is whether the evidence necessary to establish the
commission of one offence involves evidence of another criminal
offence. If it does, the two offences are to be considered as one
transaction.10
[24] The evidence required to prove th at the applicant committed the fraud
offences is the same evidence required to prove the acquisition and
use of the proceeds of such fraud. The court a quo erred in convicting
the appellant on count 22, as this clearly constitutes a duplication.
7 S v Whitehead [2007] ZASCA 127; [2008] 2 All SA 257 (SCA); 2008 (1) SACR 431 (SCA).
8 Act 51 of 1977.
9 [2013] ZASCA 160; 2014 (2) SACR 23 (SCA) para 3.
10 R v Van der Merwe 1921 TPD 1.
Ad sentence
[25] The appellant avers that the sentence imposed by the court a quo is
harsh and shockingly inappropriate, and that it destroys rather than
rehabilitates him. He further avers that the sentence exceeds that
which the court could have imposed had the minimum sentence
legislation applied, which, in this case, did not. He therefore contends
that the sentence is disproportionate to the offence and to all other
relevant considerations to be taken into account in imposing a
sentence.
[26] Further, the appellant argues that the court a quo erred in its
calculation, arriving at 48 years, whereas the correct calculation is 40
years.
[27] The appellant embarks on a comparative analysis of various decisions,
mainly from the SCA, involving circumstances related to the present. In
those matters, sentences for theft and fraud involving amounts
between R1 million and R46 million ranged from three to twelve years
imprisonment. He contends that the amounts involved in his conviction
were significantly lower than those in the cited decisions.
[28] The appellant avers that the sentence imposed is in stark contrast to
relevant case law, including the cited decisions . Lastly, the appellant
contends that the co urt a quo erred in not imposing a sentence which
takes into consideration sections 276(1)(h) and (i) of the CPA.
[29] The appellant submits that, if this court were to interfere with the
sentence imposed by the trial court, the only appropriate sentence in
the circumstances would be one of direct imprisonment, backdated to
19 August 2021.
[30] The respondent, on the other hand, argues that the sentence imposed
demonstrates that the court a quo exercised its discretion judiciously by
ordering the sentences for the 21 fraud charges to run concurrently,
which shows that the court a quo tempered the sentence with a
measure of mercy.
[31] In the heads of argument, the respondent points out that the fact that
the appellant was a first offender was adequately considered by the
court a quo and was outweighed by the seriousness of the offences
committed by the appellant and the lack of remorse. The respondent
does not make any reference to any other mitigating factors, including
the report of the probation officer.
[32] The respondent, however, concedes that the court a quo misdirected
itself in failing to order that the 15 -year sentence on count 22 should
run concurrently with the sentences on counts 1 to 21, as this would
have reduced the effective term of imprisonment; in imposing a
sentence of 48 years instead of 40 years , and in ordering that the
sentence on count 19 should run concurrently with count 20, when it
had already ordered for both counts to run concurrently with the
sentence on count 8.
[33] Notwithstanding these concessions, the respondent avers that none of
these misdirections warrants this Court’s interference, contending that
they are merely ‘minor errors’ capable of correction by this Court. This
is incorrect.
[34] It is trite that in an appeal against sentence, the powers of the appeal
court are circumscribed. This was reaffirmed by the Constitutional
Court in S v Bogaards11, that a court of appeal can only interfere with a
sentence imposed by a lower court where there has been an
irregularity that results in a failure of justice, or the sentence is so
disproportionate or shocking that no reasonable court could have
imposed it.
11 2013 (1) SACR (CC).
[35] Further, in S v De Jager and another 12, the Supreme Court of Appeal
held that a sentence imposed by a lower court should only be altered if
(a) an irregularity took place during the trial or sentencing stage, (b) the
trial court misdirected itself in respect to the imposition of the sentence,
(c) the sentence imposed by the trial court could be described as
disturbingly or shockingly inappropriate.
[36] “It is trite law that sentence is a matter for the discretion of the court
burdened with the task of imposing the sentence. Various tests have
been formulated as to when a Court of Appeal may interfere. These
include whether the reasoning of the trial court is vitiated by
misdirection or whether the sentence imposed can be said to be
startlingly inappropriate or to induce a sense of shock. … . Either the
discretion was properly and reasonably exercised or it was not. If it
was, a Court of appeal has no power to interfere; if it was not, it is free
to do so.13
[37] It is not in dispute in this case that the court a quo misdirected itself.
This is conceded by the respondent in its heads of argument. Whilst
the respondent trivialises these misdirections as ‘minor errors ’, this
court cannot turn a blind eye to them, as they go to the heart of the trial
court’s exercise of its sentencing discretion. They therefore constitute
material misdirections by the trial court. The following irregularities are
evident:
37.1. The sentence imposed by the trial court is disturbingly inappropriate
and disregards the weight of authority on the issue.
37.2. The trial court misapplied the law relating to the POCA offences,
which has a direct bearing on the sentence imposed.
37.3. The trial court failed to adequately consider the mitigating factors
presented, namely, that the appellant is a first offender; that he is
married and has two minor children; the time he had spent in prison
12 1965 (2) SA 616 (A).
13 S v Kgosimore 1999 (2) SACR 238 (SCA) at para 10.
awaiting trial and that he had indicated his willingness to remedy the
prejudice caused to the complainant.
37.4. The following irr egularities occurred during sentencing: (i) the court
contradicted itself in imposing a sentence of 48 years against its own
finding, adding up to 40 years, (ii) in duplicating sentences in respect
of counts 19 and 20.
[38] The respondent’s contention that the sentence is fair and balanced
cannot be sustained, as it is inconsistent with its concessions.
[39] While the respondent contends that the appellant’s personal
circumstances were duly considered by the trial court, taking into
account the seriousness of the offences committed by the appellant
and the interests of the community, this is not reflected in the judgment
of the court and the sentence imposed. Undue emphasis was placed
on imposing a ‘harsh’ sentence, without properly balancing the
competing interests. That exercise requires the court to impose a
sentence which ‘fits the offender, the offence and is fair to society ’. In
this regard, the sentence imposed is evidently out of kilter with the
circumstances of the case and the various decisions of this court, other
Divisions and the Supreme Court of Appeal.
[40] In S v Nagrani 14, the accused was sentenced to eight years
imprisonment for 21 counts of fraud involving the Receiver of Revenue,
with two years suspended for five years.
[41] In Bukari v S 15, a Full Bench of this Division reduced a sentence of
twelve years imprisonment for 19 counts of fraud, one count of forgery
and one count of uttering to eleven years, with five years suspended for
a period of five years. In arriving at the sentence, the appeal court
made a comparison of various decisions involving fraud and similar
offences. The court took into consideration the fact that the pecuniary
14 1997(2) SACR 98(W).
15 [2024] ZAGPJHC 447.
loss suffered by SARS was significantly less than the losses suffered
by the complainants in the various cases referred to.
[42] In S v Assante 16, a 50 -year-old appellant was sentenced to 24 years
imprisonment for 108 counts of fraud perpetrated against a bank at
which he was a manager, totalling R345 million.
[43] In light of my finding that the court a quo misdirected itself in convicting
the appellant on count 22, it automatically follows that the sentence
imposed in respect thereof should fall away.
[44] In respect of counts 1 to 21, the effective term of 25 years’
imprisonment is not only excessive in the circumstances of this case ,
but also alarmingly at odds with all the authorities on this aspect.
Order
[45] In the result, the following order is made:
(i) The appeal against conviction in respect of count 22 is upheld.
(ii) The appeal against the sentence is upheld.
(iii) The sentence of 4 8 years imprisonment is set aside and
substituted with the following order:
“The accused is sentenced to eight years imprisonment, three of
which are suspended for a period of five years on condition that
the appellant is not found guilty of fraud committed during the
period of suspension.”
(iv) The sentence is antedated to 19 August 2021.
16 2003 (3) SACR 117 (SCA).