Maxam and Another v Director of Public Prosecutions, South Gauteng: Director of Public Prosecutions v Maxam and Others (388/2021) [2026] ZASCA 94 (29 June 2026)

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable

Case No: 388/2021

In the matter between:

MAXAM ONASIS FIRST APPELLANT
NKOSI BONGANI SECOND APPELLANT

and

DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT
SOUTH AFRICA

And in the matter between:

DIRECTOR OF PUBLIC PROSECUTIONS
SOUTH AFRICA APPELLANT
and
MAXAM ONASIS FIRST RESPONDENT
MARAKALALA LESIBA JAMES SECOND RESPONDENT
LEDWABA MALESELA DONALD THIRD RESPONDENT
NDLELA FUNEKA FELICIA FOURTH RESPONDENT
MOLOTSANE JABULILE TRACY FIFTH RESPONDENT
PITJENG MAPHUTHI FRANCINAH SIXTH RESPONDENT
NKOSI BONGANI SEVENTH RESPONDENT

Neutral Citation: Maxam and Another v Director of Public Prosecutions ,
South Gauteng: Director of Public Prosecutions v Maxam
and Others (Case no 388/2021) [ 2026] ZASCA 94 (29
June 2026)

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Coram: HUGHES, M EYER, KOEN and COPPIN JJA and
KGANYAGO AJA
Heard: 06 March 2026
Delivered: This judgment was handed down electronically by circula tion to
the parties’ representatives by email, publication on the Supreme Court of
Appeal website and release to SAFLII. The date and tim e for hand-down of
the judgment is deemed to be 11h00 on 29 June 2026.
Summary: Criminal Law – Prevention of Organised Crime Act 121 of 1998
(POCA) – Racketeering – existence of an enterprise – whether evidence
established that appellants and their co -accused all part icipated in the affairs
of the enterprise through a pattern of racketeerin g activities – whether
conviction of an accused in terms of both, s 2(1)(e) and of s 2(1) (f) of POCA
competent – fraud – theft – armed robbery – unlawful possession of firearms
and ammunition – common purpose – recusal of presiding judge.
Sentence – cross appeal by the S tate – interference with sentence imposed
by a trial court – imposition of prescribed minimum sentence – whether high
court erred in imposing non-parole period.

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______________________________________________________________

ORDER
______________________________________________________________

On appeal from : Gauteng Division of the High Court, Johannesburg
(Maluleke J sitting as the first court of instance):
The following order is granted:
1. The appeals of both appellants are partially upheld to the extent set out
hereunder.
2. The cross -appeal in respect of the sente nces i mposed on the
appellants is partially upheld to the extent set out hereunder.
3. In respect of the first appellant (Mr Onasis Maxam):
3.1 The convictions and sentences on the following counts are set
aside: Count 4 (contravening s 2(1) (f) of the POCA); counts 9 and 18
(the unlawful possession of firearms); and counts 10, 19 and 54 (t he
unlawful possession of ammunition).
3.2 The first appellant’s conviction s on the remaining counts are
confirmed.
3.3 The sentence in respect of count 3 (contravening s 2(1)(e) of the
POCA) is set aside and is substituted with a sentence of 20 years’
imprisonment. The other sentences are confirmed.
3.4 All the sentences are antedated to 30 November 2012.
3.5 Except for 3 years imposed in respect of the aggravated robbery
counts, all t he sen tences are to run concurrently with the sentence
imposed in respect of count 3. Thus, the effective sentence is 23 years’
imprisonment.
3.6 The first appellant is declared unfit to possess a firearm as
contemplated in s103 of Act 60 of 2000.
4. In respect of the second appellant (Mr Bongani Nkosi):
4.1 The convictions and s entences imposed in r espect of the following
counts are set aside: c ount 18 (the unlawful possession of firearms),
and counts 10, 19 and 54 (the unlawful possession of ammunition).
4.2 The second appellant’s convictions on the remaining counts are
confirmed.

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4.3 The sentence i mposed in respect of count 3 (for contravention of s
2(1)(e) of the POCA) is set aside and is replaced with a sentence of 15
years’ imprisonment. The sentences in respect of the other convictions,
and the declaration of his unfitness t o possess a firearm, are
confirmed.
4.4 All the sentences are antedated to 30 November 2012.
4.5 Except for 5 of the years imposed for the aggravated robberies, all
the sentences are to run concurrently with the new sentence imposed
for count 3. Thus, the effective sentence is 20 years’ imprisonment.
4.6 The non-parole period imposed by the high court is set aside.
4.7 The seco nd appellant is declared unfit to possess a firearm as
contemplated in s103 of Act 60 of 2000.
5. The cross-appeal is otherwise dismissed also in respect of the
sentences imposed on the third to seventh accused.
______________________________________________________________

JUDGMENT
______________________________________________________________

Coppin JA (Hughes, Meyer and Koen JJA an d Kganyago AJA
concurring):

[1] Following a trial in the Gauteng Division of the High Court ,
Johannesburg (the high c ourt), the appellants, Mr Onasis Maxam (the first
appellant) and Mr Bongani Nkosi (the second appellant) , who were,
respectively, accused 1 and 8 in those proceedings, were convicted of various
offences perpetrated on branches of the South African Post Office (the post
office). These included offences in terms of the Prevention of Organised
Crime Act 121 of 1998 ( the POCA) for managing and b eing involved in the
activities, in a pattern of racketeering, of a criminal enterprise (the enterprise),
robbery with aggravating circumstances, robbery, fraud, theft and the unlawful
possession of f irearms and ammunition . They were s entenced to effective
terms of, respectively, 23 years’ and 20 years’ imprisonment.

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[2] With the leave of the high court, the appel lants are appealing against
their convictions. The Director of Public Prosecutions (the State) is cross -
appealing against th e sentences imposed o n them and on their co-accused,
cited as the second, and the fourth to seventh respondents in the cross -
appeal. The State seeks to have their sentences increased. The second and
fourth to seventh respondents were, respectively, accused 3, 4, 5, 6 and 7 in
the high court. Two of their co-accused, namely, accused 2 and 9, have died
and are referred to in this judgmen t merely for completion of the narrative.
The first and eighth accused shall be re ferred to as the first and second
appellants respectively and t heir surviving co -accused, by their numbers as
accused rather than their numbers in the cro ss appeal, or simply as ‘the other
accused’.

Background
[3] The offences with which the appellants and the other accused,
including the deceased accused, were charged, relate to a spate of robberies
and related activities at a branch in Midrand and various branches of the post
office in the East Rand of Gau teng. The fi rst appellant was previously
employed as a branch m anager of the Tembisa South branch of the post
office. The other co-accused, with the exception of the second appellant, were
also employed by the post office at different branches. The second appellant
was not employed at the post office and was alleged to have committed the
offences in question as part of the racket eering enterprise he managed with
the first appellant.

[4] On 15 November 2012, the first appellant was convicted on various
counts. By way of background, the offences he was convicted of in terms of
those counts are those referred to in the following paragraphs.

[5] (a) Count 1- fraud – (this only relates to the first app ellant). The high
court, having found that the first appell ant unlawful ly, and with the intent to

court, having found that the first appell ant unlawful ly, and with the intent to
defraud and prejudice, falsely represented to the po st office and/or Standard
Bank (the bank) that certain amounts of money were deposited in to the post
office’s accounts held at the bank, whereas that was not true;

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(b) Count 3 – a contravention of s 2(1)(e) of the POCA. All the accused were
charged with th is count. The high co urt found that the appellants, w ere
managing, or being employed by or associated with an enterprise as defined
in section 1 of that Act (as fully described in the indictment), and conducted,
or participated in the conduct, directly or indirectly, of such enterprise’s affairs
through a pattern of rackete ering activities as described in coun ts 5 – 50 and
52 – 56 of the indictment;
(c) Count 4 – a contravention of s 2(1)(f) of the POCA. Only the first appellant
and the late accused 2 were charged with this cou nt. The high court found
that the first appellant managed the operation s and affairs of th e enterprise
and knew or ought to have known that any person employed by or associated
with the enterprise, conducted and participated, directly or indirectly, in the
affairs of such enterprise through a pattern of racketeering activity.

[6] (d) Counts 5 to 7 – these counts pertain to the robbery at the Ebon y
Park post office (the Ebony Park robbery). Counts 5, 6 and 7 are similar
counts of fraud which relate to the f raudulent use by the accused of the
personal details and identity information of dif ferent individuals, without their
knowledge and permission, in order to open fals e post office bank savings
and investments accounts.
(e) Counts 8 to 1 4 – these counts also relate to the Ebony Park robbery.
Count 8 is the actual charge of robbery of items, including post office property,
such as comput er towers, a key board a nd cash, and items from individuals
who were in the post office at the time, namely, cellular phones. Count 9 is in
respect of the alleged unlawful possession of firearms and count 10 pertains
to the alleged unlawful possession of a mmunition in that robber y. Count 11
alleges that the accused, including the appellants, defrauded the p ost office
by simulating a false ‘deposit’ into a false account, opened unlawfully in the

by simulating a false ‘deposit’ into a false account, opened unlawfully in the
name of a particular individual (Mabula) without his knowledge or consent.
Count 12 is similar to count 11 , save that it relates to a false deposit entered
into a false account in the nam e of another individ ual. Counts 13 and 14 are
similar and relate, respectively, to the theft of amounts (R80 000) from each of
those false accounts.

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[7] (f) Counts 15 and 16 – these counts only relate to the first appellant
and two ot her accused , accused 3 and accused 2 (deceased). The second
appellant was not charged with these counts. They pertain to the robbery that
occurred on 2 9 June 2008 a t the Boksbu rg North Post Office branch (the
Boksburg North robbery). The main count 15 was one of fraud in terms of
which it was all eged that the accused (including the first appellant) falsely
represented to the post office that the mentioned individuals completed a post
bank savings and investment application form , but had forged their
signatures. Count 16 is a si milar count in terms of which it is alleged that the
said accused had made a false representation to the post office concerning
another individual completing such a form and had also forged his signature.

[8] (g) Counts 17 to 29 – these counts also relate to the Boksburg North
robbery. They implicated both appellants and certain of the other accused, but
excluding accused 4 . Count 17 is the actu al robbery c harge. Count 18
pertains to the alleged unlawful possession of firearms and coun t 19 to the
alleged unlawful possession o f ammunition. Count 20 is a fraud count , in
which it is alleged that the accused (including the appellants) fra udulently
represented to the post office that a certain individual had deposited R80 000,
purporting to be his money , into one of the fal se accounts opened by them.
Counts 21, 22, 23 and 24 are counts of fraud similar to count 20 , but pertain
to different amounts and individuals. Counts 25 to 29 are al l counts of theft
against those accused and relate, respe ctively, to the withd rawal of monies
falsely deposited into the false account s made in the name of the mentioned
individuals without their knowledge and consent.

individuals without their knowledge and consent.

[9] (h) Counts 30 to 34 – these counts relate to a robbery perpetrated at
the Randjiesfontein post office branch , in Midrand, on 21 Ju ly 2008 (the
Randjiesfontein robbery). They were only brought against the first appellant,
accused 2 (deceased), and accused 4. The sec ond appellant was not
implicated in these counts. Count 30 is a charge of fraud in terms of which it is
alleged that on or about 15 July 2008 , the accused (including first appellant)
fraudulently represented to the post office that a particular individual opened a
post bank savings and investment account, whereas that was false. Counts

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31, 32 and 33 are s imilar fraud charges relating to the fraudulent use of
particular individuals’ names and personal particulars. The second respondent
is also implicated. Count 34 is the actual robbery charge . In terms of this
count it is alleged that t he accused, (includin g the appellants) ro bbed an
individual’s cellular phone and post office property , namely, a keyboard, four
computer towers, a monitor, five credit cards and R8 000 in cash.

[10] (j) Counts 37 to 46 – these counts still relate to the R andjiesfontein
robbery. Counts 37, 38, 39, 40 and 41 are similar counts of fraud , but each of
them deals with a different false account and the fictional deposit of amounts
into that false account. Counts 42, 43, 44, 45 and 46 are similar counts of
theft a nd they relate respec tively to withdrawal s of different amounts from
those false accounts.
(k) Counts 52, 55 and 56 – they relate to a robbery at the Tembisa North Post
Office branch in Kempton Park (the Tembisa North robbery). The first
appellant was form ally a manager of tha t branch. Both appel lants were
charged and convicted o n these counts. The main count 52 is one of
aggravated robbery of individuals’ pro perty (cellular phones, and the property
of the post office, including a keyboard, two computer tow ers, debit cards,
keys and cash). Counts 55 and 56 are similar counts of fraud, but each deals
with a different a mount of money falsely deposited into a diff erent fa lse or
fraudulent post bank account. Although counts 53 and 54 were not specifically
or expressly referred to in the high court’s ju dgment, both appellants were in
effect convicted on those counts . Those counts relate, respectively, to the
unlawful possession of firearms, and ammunition.

[11] On 30 November 2012, the high court sentenced the fi rst appellant as
follows:
Count 3 (convi ction in terms of s 2(1) (e) of the POCA) – 10 years ’
imprisonment;
Count 4 (conviction in terms of s (2)(1) (f) of the POCA) – 18 years ’

imprisonment;
Count 4 (conviction in terms of s (2)(1) (f) of the POCA) – 18 years ’
imprisonment;
Counts 1, 5, 6, 7, 11, 12, 15, 16, 20, 21, 22, 23, 24, 30, 31, 32, 33, 37, 38, 39,
40, 41, 55 and 56 (fraud), 2 years per count, totalling 48 years’ imprisonment;

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Counts 8,17 and 52 (aggravated robbery) – 10 years per count, totalling 30
years’ imprisonment;
Count 34 (robbery) – 7 years’ imprisonment;
Counts 9, 18 and 5 3 (unlawful possession of firearms) and counts 10,19 and
54 (unlawful possession of ammunition). The high court took them all together
for the purpose of sentencing – imposing 3 years for each set, giving a total of
9 years’ imprisonment;
Counts 13, 14, 25, 26, 27, 28, 29, 42, 43, 44, 45 and 46 ( 12 counts of theft) –
2 years per count, totalling 24 years’ imprisonment.

[12] In respect of the fi rst appellant, t he high court also ordered the
following regarding his sentence : ‘ Except for five years of the sen tence for
count 3, all the sentences are to run concurrently with the sentence in count 4
and therefore the effective sentence is 23 years ’ imprisonment. The accused
is declared unfit to hold a firearm licence in terms of Section 103 of Act 60 of
2000.’

[13] The second appell ant was convicted on 37 counts and on 30
November 2012, and was sentenced as follows:
Count 3 – (contravening section 2(1)(i) of the POCA) (this should have been a
reference to s 2(1)(e) of POCA) – 12 years’ imprisonment;
Counts 8 (Ebony Park branch robber y), 17 (the Boksburg North Branch
robbery) and 52 (the Tembisa North robbery) (they are referred to as 3 counts
of aggravated robbery) – 20 years’ imprisonment on each count , totalling 60
years’ imprisonment;
Count 34 (robbery) – 12 years’ imprisonment;
Counts 9, 18 and 53 (unlawful possession of firearms ) and counts 10,19 and
54 (unlawful possession of ammunition ) taken as one for sentence ; 5 years’
imprisonment imposed for every set of 2 counts – totalling 15 years ’
imprisonment;
Counts 11 ,12, 20, 21 , 22, 23, 24, 37, 38, 39, 40, 41 , 55, 56 (14 counts of
fraud); 2 years ’ imprisonment imposed for each count – totalling 28 years ’
imprisonment;

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Counts 13, 14, 25, 26, 27, 28, 29, 42, 43, 44, 45 and 46 (12 counts of theft); 2
years’ imprisonment imposed for each count – totalling 24 years ’
imprisonment.

[14] In respect of the second appellant’s sentences, the high court ordered
as follows:
‘All sentences are to r un concurrently and the effective sentence is therefore
20 years ’ imprisonment. It is ordered in term s of Section 276B (1 ) that the
accused should not be eligible for parole before he has served 12 years of the
effective sentence of 20 years’ imprisonment. The accused is declared unfit to
hold a firearm licence in terms of Section 103 of Act 60 of 2000.’

[15] The appellants are challenging their convictions. In essence, they deny
any knowledge of , or of being a part of the alleged enterprise, or of having
been involved in any of the crimes they were charged with or convicted of. In
respect of the cross ap peal, they contend, essentially, that if their convictions
stand, there is no basis upon which this Court can interfere with the sentences
imposed by the high court.

[16] In this judgment the appellants ’ appeal is dealt with first, an d in that
regard the following issues will be dealt with sequentially: the dismissal by the
high court judge of an application for his recusal; and the appeal agains t the
convictions of th e appellants , including the question of the duplication of
convictions of the first appel lant for the POCA of fences and the appellants’
convictions for the unlawful possession of firearms and ammunition . The
cross-appeal and the sent encing is d ealt with thereafter, and lastly, the
conclusion and the order.

The recusal application
[17] In the course of the trial the accused, including the appellants, applied
in writing for the presiding judge’s recusal. They alleged that the presiding
judge: (a) made repeated references to the fact that the ir release on bail was
delaying th e finalisation of the trial; (b) acted un reasonably in not allowing

delaying th e finalisation of the trial; (b) acted un reasonably in not allowing
them or their legal representative a reasonable opportunity to consult; (c)

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appeared disintereste d in th eir defence an d was not making notes of the
submissions made on their behalf; and (d ) had private discuss ions with the
state counsel. After having heard the parties, in a written ruling dated
30 November 2012, the presiding judge ruled that there wa s no substance in
the application and dismissed it. In coming to that conclusion , the judge
denied the allegations made, referred to the applicable principles and the test
for recusal, and ruled that the test had not been met.

[18] The test for recusal , where there is reliance, not on actual bias, but on
a reasonable perception of bias, is trit e.1 First, in the con text of a criminal
matter, there must be an apprehension that the presiding officer might be
biased toward the accused. Second, the apprehens ion must be th at of a
reasonable person in the position of the accused, and it must be based o n
reasonable grounds. The test, referred to as ‘the SARFU test’, was formulated
by the Constitutional Court as follows: ‘The question is whether a reasonable,
objective and inf ormed person would on the correct facts reasonably
apprehend that the Judge has not or will not bring an impartial mind t o bear
on the adjudication of the case, th at is a mind open to persuasion by the
evidence and the submissions of counsel.’2

[19] In SACCAWU3 and Basson4 the Constitutional Court further formulated
principles for de ciding the question o f recusal 5. In Systems Application 6 it
summarised those principles as follows:

1 President of the Republic of South Africa and Others v South African Rugby Football Union
and Others [1999] ZACC 11; 2000 (1) SA 1; 1999 (4) SA 147 (CC); 1999 (10) BCLR 1059.
2 Ibid para 48. See also Sterea Digital CC and Another v City of Cape Town and Other s
[2025] ZASCA 166; [2026] 1 All SA 85 (SCA); 2026 (2) SA 505 (SCA) par a 15; Afriforum v
Economic Freedom Fighters a nd Others [2024] ZASCA 82; [2024 ] 3 All SA 319 (SCA); 2024
(10) BCLR 1275 (SCA); 2024 (6) SA 1 (SCA) paras 20-23.

(10) BCLR 1275 (SCA); 2024 (6) SA 1 (SCA) paras 20-23.
3 South African Commer cial Catering and Allied Workers Union and Others v Irvin and
Johnson L td ( Seafoods Division Fish Processing ) [2000] ZAC C 1 0; 2000 (3 ) SA 705 (CC);
2000 (8) BCLR 886 (CC); (2000) 21 ILJ 1583 (CC) (SACCAWU) paras 12, 13 and 15.
4 S v Basson [2005] ZACC 10; 2005 (12) BCLR 1192 (CC); 2007 (3) SA 582 (CC); 2007 (1)
SACR 566 para 42.
5 See also Stainbank v South African Aparthe id Museum at Freedom Park [2011] ZACC 20;
2011 (10) BCLR 1058 (CC); 2015 JDR 2524 (CC) para 45 and Ramabele v S; Msimango v S
[2020] ZACC 22; 2020 (2) SACR 604 (CC); 2020 (11) BCLR 1312 (CC) paras 51-53.
6 Systems Applications Consultants (Pty) Limited v SAP SE and An other [2016] ZACC 1 3;
2026 (6) BCLR 613 (CC); 2026 JDR 1504 (CC) para 45.

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‘In considering an application for recusal a court’s starting point is to pr esume that
judicial officers are impartial in adjudicating disputes. The presump tion of judicial
impartiality is not easi ly dislodged, requiring “cogent” or “convincing” evidence to be
rebutted. Both the person apprehending bias and the appre hension itself must be
reasonable in the circumstances. To establish bias based on a judicial officer’s
remarks, a complainant must show that the remarks were of such a number or quality
to go beyond mere irritation and establish a pattern of conduct suffi cient to dislodge
the presumption of impartiality. And impartiality requires, in short “a mind open to
persuasion by the evidence and the submissions of counsel.”’ (Citations omitted)

[20] Turning to the facts in this matter. It was not conceded that the
presiding jud ge had private discussions with the state counsel. Both the
counsel and the presi ding judge denied hav ing such discussions . From their
application it is apparent that the accused (including the appellants) were
relying on conjecture and infer ence for their assertion, which was not based
on fact. They never saw the presiding judge have private discussions with the
state counsel. The record does show that the presiding judge mentioned the
fact that the accused’s counsel, Mr Stratham -Ford was abs ent from the
hearings so many times and that they were having difficulties arranging their
diaries, including the presiding judge’s diary. There is nothing improper about
the arrangement or synchronisation of diaries. It was a necessary exercise in
the circumstances and there is no basis for finding that this happened in
private. The presumption of judicial impartiality was not dislodged. The
required apprehension could not arise.

[21] Turning to the other grounds. They are even more spurious. The record
shows that despite the frequent absences of their counsel, the presiding judge

shows that despite the frequent absences of their counsel, the presiding judge
was very accommo dating. The record sh ows further that amp le opportunity
was given for consultation and for the taking of further instructions. In fact, it
was put on record t hat there had bee n a great number of requests for such
indulgences and that none of those reque sts had been turned down .
Regarding the rema rks made in respect of the accused being on bail – the
criticism of the presiding judge for making those remarks is n ot reasonable if
regard is had to their context and the atmosphere that prevailed at the time.

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There were many delays c aused by the absence of the accused’s legal
representatives. The presiding judge had good reason for taking a dim view of
the delays. When the p residing j udge made the remarks , the legal
representative was once again absent, apparently as he was busy with
another case in Cape Town. The matter could not proceed and another week
was wasted. What is required of a judge is ‘impartialit y and not neutra lity’7
when it comes to such matters.

[22] The judge’s remarks had nothing to do with the guilt or innocence of
the accused, but ha d everything to do with the needless delays and
postponements that were hampering the finalisation of the tr ial and the
administration of justice. The judge was rightly irritated by the many delays
caused by the defence. The obvious baselessness of the ground alleging that
the presiding judge did not take notes of the defence submissions , just serves
to underscore the spuriousness of the recusal application. It is not required of
a judge to take notes or written note s of submissions. The accused did not
succeed in dislodging the presumption of the presiding judge’s impartiality. It
is so that even in trying circu mstances judicial restraint is called for. However,
taken individually or collectively, the gro unds relied upon for the recusal were
rightly dismissed by the presiding judge.

The appeal against the convictions
[23] Both appellants contest the correctness of their convictions. The y
maintain the high court should have upheld their defences in respect of every
count and should have acquitted them . In p roving its case against the
accused, including the appellants, the State relied on the principle of common
purpose, and on t he followi ng: (a) the viva voce evidence of 37 witnesses,
including that of Mr Gibson Moshoene8 (Mr Moshoene) , M r Ignatius Merwe
Janse van Rensburg (Mr van Rensburg) , national manager of the forensic
investigation unit of the post office who analysed the p hone calls made and

investigation unit of the post office who analysed the p hone calls made and
the bank statements relating to the opening and operating of the false post

7 S v Shackell [2001] ZASCA 72; 2001 (4) All SA 279; 2 001 (4) SA 1; 2001 (2) SACR 185
(SCA) paras 21-22.
8 This is how his s urname is spelled in the judgement. Elsewhere in the record it is spelled
‘Masoene’.

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office bank accounts; (b) admitted cellular phone data evidence of phone calls
and cell ular phone tower locations obtained from service provide rs and
relating to telephonic conversations of the accused (including the appellants);
(c) admi tted post off ice bank data and Sta ndard Bank banking documents,
including records, statements and reports regarding monies received by the
affected post office b ranches, the crea tion and o peration of false post office
bank savings accounts, the fraudulent and false dep osit entries into th ose
accounts and the withdrawal of monies from them, as well as the analyses of
such data; (d) the evidence of individual witnes ses who identifie d the
appellants, as well as the fingerprint evidence of the first appellant a t one of
the robbed branches, the use of the first app ellant’s red BMW vehicle, the
identification of the second appellant and the use of a vehicle linked to him , in
the execution of the enterprise’s nefarious agenda.

[24] The evidence of Mr Moshoene , a Bosasa securit y guard stationed at
the Ebony Park branc h of the post office and an informer, in brief, was to the
following effect. A day before the Ebony Park robbery he was insi de the post
office when he was approached by a man that requested a deposit slip from
him. The person requested his help in completi ng the slip. After he showed
the person how to complete it and where to write hi s name, the person wrote
the name ‘Onasis’ o n the slip and asked Mr Moshoene whether he knew the
owner of that name . Mr Moshoene looked at him with surprise . The person
then squashed the slip, told Mr Moshoene that other people were coming ‘to
finish off t he job’ and left with the slip. Mr Moshoene observed h im leaving
through the gate and then gett ing into the back of a red BMW. Mr Mosho ene
reported this to the branch manager and to Bosasa. The robbery took place in
the morning of the following day. Mr Mo shoene was pointed and threatened

the morning of the following day. Mr Mo shoene was pointed and threatened
with a firearm and assaulted; he and the other staff were taken to the walk -in
safe where they were cl osed in. One of the r obbers outside the s afe called
others to ‘come quickly’. Computers and other items were taken, incl uding
phone cards, scratch cards and coins, a nd some cl ients had been robbed of
their phones. T he next day Mr Moshoene, after having bee n asked to
investigate the first appellan t and, the now late, accused 2 , phoned them and
asked them whether they were th e ones that robbed the post office, and they

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denied it. He was then instructed by his superiors at B osasa to approach
those same persons and to tell them tha t he had resigned . H e did so and
asked those persons for employment because, so he told them, he w as no
longer employed.

[25] The first appell ant and ac cused 2 (now deceased), unaware that he
was an informer, and believing that he wa s unemployed, tried t o recruit him
into the enterprise. He went to Daveyton where the first appellant resides. He
was driven in the first appellant’s red BMW. They told him ho w they operate
and he met some of their accomplices, including the second appella nt. He
was taken to t he second appellant’ s place . H e realised that the second
appellant was ‘one of the people wh o had come to the post office pointing
firearms’ at them in th e Ebony Park robbery. He also go t to know that the
person that wrote ‘Onasis ’ on the deposit slip was part of the appellan ts’
enterprise. They wanted him to get his firearm and h e was assured t hat if he
works well with the group, he would be driving a ‘Golf 4’ before December. His
evidence was corroborated, inter alia, by the cell phone data evidence, which
was formally admit ted by all the accused, including the appellants . The
evidence, derived from the cell phones of the accused and the systems and
cell phone towers of providers, indicated, inter alia , the dates and times of
calls made between them, and the locations of the handsets at the times of
the calls.

[26] At the tr ial, the first app ellant gave evidence but did not call any
witnesses. T he second appellant also gave evidence and called three
witnesses, namely, his two brothers and the father of the late accused 9, to
confirm his alibi . On appeal , it is submitted on behalf of both appellants , in
essence, that they were wrongly convicted and that the high court should
have found that they were not involved in any of the offences. In this Court
their c ounsel conceded ulti mately that the true issue was whether the

their c ounsel conceded ulti mately that the true issue was whether the
appellants were properly identified and implicated in the commission of the
crimes. The ap pellants principally criticise the evidence of Mr Moshoene and
the evidence relati ng to the cell phone records. They al so submit that where

16
there has been a reliance by th e state on circumstantial evidence , it was not
sufficient for their conviction.

[27] The appellants submit the following. First, regarding Mr Moshoene, that
he was a single witness and an accomplice in respect of some of the charges
brought against them; that his evidence was not treated by the high court with
‘the necessary cau tion it de serves’ and should not have been accepted
because of ‘the glaring discrepancies’ b etween his evidence a nd that of the
other witnesses. Second, the circumstantial evidence proffered in the form of
cell phone records was insufficient; certain cell phone numbers contributed to
the second appellant were not compliant with the Regulation of Interception of
Communications and Provision of Communication-Related Information Act 70
of 2002 (the RICA Act); and the second appellant ’s denial of using those
numbers should have been found to be reasonably possibly true.

[28] Third, that the second ap pellant’s identification by a single witness was
insufficient and that his identific ation in relation to the Randjiesfontein robbery
(counts 34 -46) by Ms Sugar Mo kgethi was a ‘dock-identification’ and was
insufficient. Fourth, that Mr Moshoene’s identifica tion of the second ap pellant
as the perso n who robbed him in relation to the Ebony P ark robbery (counts
8-14) was that of a single witness and was unreliable becaus e of the
discrepancies between his evidence and that of other witnesses.

[29] It is an est ablished principle th at a court of appeal will not lightly
interfere with the factua l findings of a trial court . It will only do so if ‘there is a
demonstrable and material misdirection or finding that is clearly wrong.’9

Common cause facts
[30] The following facts were commo n cause or could not be disputed. The
first a ppellant and the other accused, excluding the second appellant , are
former employees of the post o ffice. The first appellant was branch manager

former employees of the post o ffice. The first appellant was branch manager

9 Mashongwa v PRASA [2015] ZACC 38; 2016 (3) SA 528 (CC) para 45, where the principle
stated in R v Dhlumayo and Another 1948 (2) SA 677 (A) at 705 -706, was applied. See a lso
Bernert v ABSA Bank Ltd [2010] ZACC 28; 2 011 (3) SA 92 (CC); 2011 (4) BCL R 329 (CC)
paras 105-106.

17
of the Tembisa South post office until his res ignation, after an au dit revealed
fraud and theft at that branch . The other accused were employed in various
capacities: the late accused 2, was the manager at the Bakerton post office
until his dismissal, after an audit found fraud and theft at his branch ; accused
3 (second respondent) was manager of the Reiger Park bra nch; and accused
4, 5, 6 and 7 (the fourth, fifth, sixth and seventh respondents) were tellers at
different branches.

[31] It was not disputed that d uring the period from 15 March 2008 to 1 8
July 2008, nine fra udulent bank account s ( false a ccounts) were opened by
certain of the accused at various branches of the post office. On 15 March
2008 accused 2 , now decea sed, opened a false account at the Riverfield
branch and on 1 April 2008 , he open ed two further false accounts at that
branch. On 28 June 2008, accused 3 opened a false account at the Reiger
Park branch, and on 18 July 2008 , he opened another false account at the
same branch. On 15, 16 and 18 July 2008 , accused 4 opened false accounts
at the Khumalo post office.

[32] It was also undisputed that during the period from June to September
2008, robberies were perpetrated at various branche s of the p ost office, one
in Midrand, and others in the East Rand. The Ebony Park robbery occurred on
12 June 2008, the Bok sburg North robbery on 29 Ju ne 2008, the
Randjiesfontein robbery on 21 July 2008, the Khumalo robbery on 4 August
2008, and the Tembi sa North r obbery on 2 3 September 2008. The modus
operandi in the robberies was generally the same. In the c ourse of the
robbery, and once the s taff had been removed or detained in the safe, the
branch’s computers would be used to enter fictious deposits in to the fal se
account(s) that had been opened . The false accounts would be credited with
amounts as if actual deposits into that account had bee n made, whereas that
was not the case. The computers and equipment and other robbed items

was not the case. The computers and equipment and other robbed items
would then be removed from the scene by the robbers; and withdrawals would
be made from these false accounts , using the cards that had been issued in
respect of those accounts.

18
Specific counts
Count 1
[33] This relates to the first appellant only. The first appellant argues in
essence that there i s a reasonable possibility that someone else perpetrated
the fraud. The State maintains that he was cor rectly convicted on this count.
The high court found that amounts were received at the first appellant’s
branch and were ‘short banked’ on the days when the first appellant was in
control of the branch; that the first appellant ’s argument, that someone els e
did the banking in his temporary absence, did not avail him. Ultimately, it was
his responsibility to manage the post bank monies and the ban king thereof.
The first appellant conceded that on 15 December 2007 he used a ficti tious
deposit slip number f or the banking, and tha t at times he completed deposit
slips in respect of monies paid in at the branch, but never forwarded those
slips to the ba nk. On 15 December 2007 he was the only one at his branch.
He did the banking on 14 January 2008 of less than what had been received
on the previous day. He also admitted doing the banking on 15 and 16
January 2008, and on both these days there was also ‘short banking’. His guilt
on this count was established beyond a reasonable doubt.

Counts 3 and 4
[34] The first appellant was convic ted on both counts and the second
appellant on count 3. They relate to the management of and the participation
in the activ ities of a criminal enterprise as contemplated in s 2(1)(e) and s
2(1)(f) of the POCA. The ir main argument was th at they were wrongfu lly
implicated and that the testimony of the witnesses implicating them, including
that of Mr Moshoene, was contradicted b y that of other witnesses and was
unreliable. Second, that the evidence showed that there wer e differences in
the modus operandi of th e robbers in the different robberies and that this
implied that different gangs were involved; and that there was no pro of that
there was only one enterprise , or that they were involved in it s activities, or

there was only one enterprise , or that they were involved in it s activities, or
that the first appellant managed it.

[35] The modus operandi of the robbers in the various robberies was the
same. The inference therefore , that it was the s ame enterpr ise that w as

19
involved in all the robberies, is irresistible. The body of evidence implicating
the appellants, as de tailed earlier, was overwhelming. This included the viva
voce evidence of the witnesses, including Mr Moshoene, the post offic e
forensic anal yses, the cell phone dat a evidence, and the post office bank
data, which were all admitted, as well as the fingerprint evidence.

[36] One issue that arose is whether the conviction of the first appellant for
a contravention of, both, s 2(1)(e) and s 2(1)(f) of the POCA constituted a
duplication of convictions, which is legally impermissible. Those sections read
as follows:
‘(1) any person who –
(e) whilst managing or employed by or associated with any enterprise, conducts or
participates in the conduct, directly or indirectly, of such enterprise’s affairs through a
pattern of racketeering activity;
(f) manages the ope ration or activities of an enterprise and who knows or ought
reasonably to have known that any person, whilst employed by or a ssociated with
that enterprise, conducts or participates i n the conduct, directly or indirectly , of such
enterprises affairs through a pattern of racketeering activity; …
within the Republic or elsewhere, shall be guilty of an offence.’

[37] In S v Prinsloo and Others (Prinsloo)10 the majority of this Court held,
amongst others, that the offences contemplated in s 2(1)(e) and s 2(1)(f) were
separate and distinct, and that a conviction on both does not constitute a
duplication of convictions. I t referred with approval to this Court’s decision in
S v Eyssen11 where Cloete JA explained the essential difference between the
offences in those sections as follows:
‘The essence of the offence in ss (e) is that the accused must conduct (or participate
in the conduct ) of an enterpri se’s affairs. Actual participation is required (although it
may be direct or indirect). In tha t respect the subsect ion differs from ss (f), the

may be direct or indirect). In tha t respect the subsect ion differs from ss (f), the
essence of which is that the accused must know (or ought reasonably to have
known) that another person did so. K nowledge, not participation is required. O n the
other hand, ss (e) is wider than ss (f) in tha t ss (e) covers a per son who was

10 S v Prinsloo and Others [2016] ZASCA 207; [2016] 1 All SA 390 (SCA); 2016 (2) SACR 25
(SCA).
11 S v Eyssen [2008] ZASCA 97; 2009 (1) SACR 406 (SCA); [2009] 1 All SA 32 (SCA) para 5.

20
managing, or employed by, or associated with the enterprise, whereas ss (f) is limited
to a person who manages the operations or activities of an enterprise ….’

[38] The majority in Prinsloo held the following about the subsections:
‘In our view the intention of the legislature, as gathered from the plain wording of the
POCA, is to hold those involved in organised c rime liable for the differ ent roles
played by them in the conduct of an enterprise’s affairs through a pattern of
racketeering activity. These include managing (s 2(1) (f)), and personal participation
in (s 2(1)(e)), the affairs of the enterprise. As commented by Bozalek J in De Vries …
in paras 397 -398, there appears to be no good reason why a person, who both
manages and participates in the affairs of the enterprise directly, should only be liable
for one of the two roles.
… We are in agreement with couns el on behalf of the state that, in construing the
provisions of the POCA, and in particular s 2(1) (e) and (f), a liberal or broad
construction is to be preferred. This would be in accordance with the broad objectives
of the POCA set out in the preamble the reto. In National Director of Public
Prosecutions and Another v Mohamed NO and Others 2002 (2) SACR 196 (CC) …
paras 14-16 the Constitutional Court, with reference to its preamble, emphasised the
importance of the POCA to curb the rapid growth of organised crime, money -
laundering, criminal gang activities and racketeering which threaten the rights of all in
the Re public and present a danger to public ord er, safety and stability, thereby
threatening economic stability. To curtail the ambit of s 2(1)(e) and (f), as suggested
by counsel for the first accused, would in our opinion be contrary to the intention of
the legislature.
… Further, with regard to the intention of the legislature, we should emphasise that
the South African legislature was strongly infl uenced by models of organised-crime
legislation in the USA …

legislation in the USA …
… Apart from the above, we, in any event , see no reason why the legislat ure would
have inten ded to restrict the prosecution of persons under s 2(1) (f) of the POCA
solely to those managers who hav e not dirtied th eir hands by personal acts of
participation in the conduct of the affairs of the enterprise. Suc h a construction would
lead to an absurdi ty, where the manager of a multibillion -rand racketeering
enterprise, who has had minimal personal acti ve participation, would on ly be liable
for the minimal -participation role under s 2(1) (e) and not under s 2(1) (f) for the
extensive managerial role played in a highly successful criminal enterprise.

21
… We therefore conclude that this submission of counsel for the first ac cused is
without merit. It follows in our view that the court a quo correctly found the first
accused guilty on count 1…’12

[39] In Prinsloo, count 1 dealt with a contravention of s 2(1) (f) of the POCA,
and Count 2 with a contravention of s 2(1)(e). In dea ling with the latter, the
majority found that the first accused there had also been correctly convicted of
a contravention of that section. It said the following in that regard:
‘… As emphasised in Eyssen, participation in the affairs of th e enterprise is the
offence…
… To summarise, it is now well settled that the essence of the offence in terms of s
2(1)(e) of the POCA is participation through a pattern of racketeering activity, and not
knowledge. Once it is proved that the accused has par ticipated in the conduct of an
enterprise’s affairs through a pattern of racketeering activity, ie by committing two or
more predicate offences listed in sch 1 of the POCA, he or she is guilty of a
contravention of s 2(1) (e) of the POCA. There is no need f or further enqui ry, as
suggested on behalf of the first accused, as to an additional mens rea requirement
over and above the mens rea required by the predicate offences.
… the appeal of the first accused against her conviction on count 2 should fail.’13

[40] In the minor ity judgme nt in Prinsloo, Brand JA, in eff ect, and with
respect correctly, concluded that charging and convicting an ac cused of both
the offences in the subsections might well involve the impermissible splitting
of charges . Subsequently, i n S v Tiry and Ot hers (Tiry)14 this Court , in a
similarly constituted bench as in Prinsloo, was critical of the appr oach of the
majority in Prinsloo and endo rsed th e views expressed by Brand JA .15
However, this Court in Tiry did indicate that it was not appro priate for it,
because of its composition, to overrule the majority decision in Prinsloo.

because of its composition, to overrule the majority decision in Prinsloo.
Nevertheless, it gave th e following helpful exposition of the correct approach.
It held16:

12 Prinsloo 56-60.
13 Prinsloo paras 63-64 and 67.
14 S v Tiry and Others [2020] ZASCA 137; [2021] 1 All SA 80 (SCA); 2021 (1) SACR 349
(SCA).
15 Ibid paras 111-112.
16 Ibid para 112.

22
‘It seems to us that it is not a case of having to choose whether liability is confined to
the one or other section, but a matter of selecting the charge that most appropriately
covers the criminal conduct in q uestion. If the mana gers have “dirtied their hands”
extensively s 2(1) (e) may be more appropriate, while if their active involvement is
more limited, but their oversight of the enterprise greater, s 2(1)(f) may fit the bill.’

[41] The issue has now been d etermined by five judges of this Court in S v
Ditlhakanyane (Ditlhakanyane)17 where this Court endorsed Tiry. It held:18
‘In sum, this Cour t in Tiry endorsed and re -affirmed the principles set out in the
minority judgment of Prinsloo that a conviction on both s 2(1)(e) and (f) based on the
evidence test, thus relying on the same evidence to con vict an accused person, is a
duplication of convi ctions. A s this [C]ourt stated unequivocally in S v BM , it is a
common-sense view of matters in th e light of fairness to the accused and to prevent
a duplication of convictions on what is essentially a single offence and, consequently,
the duplication of punishment.’

[42] In Ditlhakanyane, the accused was also found to have been part of a
criminal enterprise which set out to loot the post of fice. The modus operandi
of that enterprise was somewhat d ifferent from the modus of the enterprise in
this matter. He was conv icted of a contravention of both subsections, and in
addition, counts of fraud and theft. On appeal this Court, having found that the
conviction of both subsections constituted an impe rmissible duplication, set
aside the conviction based on s 2(1)(f), but confirmed the conviction based on
s 2(1)(e).

[43] The high court did not err in its assessment of the eviden ce and in its
findings regarding the contravention of the POCA provisions. The evidence of
Mr Moshoene was approached with the necess ary caution, an d is
corroborated by the other evidence, including the cell phone evidence. There

corroborated by the other evidence, including the cell phone evidence. There
are n o material contradict ions in his evidence that would detract from his
credibility as a witness. The evidence also shows that Mr Moshoene was not
an accomplice, but h ad infiltrated the appellants’ enterprise, solely to obtain
information, as part of the inv estigation of the ill egal activities that were

17 S v Ditlhakanyane [2025] ZASCA 90; 2025 (2) SACR 221 (SCA).
18 Ibid para 32.

23
perpetrated on the post office branches in the Ea st Rand. Mr Moshoene was
also correctly found by the high court to ha ve b een a reliable witness, and
there is no legal basis for interfering with that finding.

[44] However, the first appellant’s conviction for a contravention of both the
subsections of POCA, is based on the same evidence and is an impermissible
duplication. H is conviction of contravening s 2(1) (f) cannot stand. But th e
conviction based on subsection (e) is confirmed. It was establishe d beyond a
reasonable doubt that the first appellant not only managed the enterprise in
this matter, but also ‘dirtie d his h ands’ by personally participating in its
racketeering activities and was proved to have com mitted several offenc es
that are listed i n schedule 1 of POCA. The second appellant was also
correctly convicted of a contravention of subsection (e). Although his role was
arguably lesser than that of the first appellant, he also managed the enterprise
and ‘dirtied his hands’.

Counts 5, 6 and 7
[45] These counts apply only to the first appellant. It was conceded that the
evidence was irrefutable, that accused 2, who was a close friend of the first
appellant and the former manager of the Tembisa South bran ch, opened the
false accounts at th e Riverfield branch. The argument was, in effect, that the
first appellant’s conviction on these counts was merely based on that
friendship and on cell phone data ; and that the evidence was insufficient to
sustain his conviction, because there was a possibility that accused 2 was on
a frolic of his own, or acting in concert with other persons, excluding the first
appellant.

[46] The evidence shows that they were not only close friends, but that they
co-operated and partic ipated in the same en terprise to lo ot the post office .
The opening of the false accounts was part of their modus. A day before
accused 2 opened the false acco unts th e fi rst appellant visited him at the

accused 2 opened the false acco unts th e fi rst appellant visited him at the
Bakerton branch : just after the first false account wa s opened. T he first
appellant phoned accused 2, who then abandoned his station at the Bakerton
branch to visit the first appellant in Daveyton , where the first appellant lives.

24
They also spoke to each other just before and after the other false accounts
were opened by accused 2. In fact , the cellular phone data shows that they
were almost in constant contact with each other, and with some of the other
accused, from 14 March 2008. The cell phone tower data also showed the
presence of the first appellant’s ha ndset at twenty -four of the places where
withdrawals were made fr om the false ‘Dube’ account, and at thirteen of the
places where withdrawals were made from t he false ‘Mabula’ account. These
false accounts were opened by accused 2.

[47] Taking all the adm issible evidence into account, the only r easonable
inference to be drawn, as the high court did, was that the first appellant was
directly involved, and that he was also in possession of the bank cards
relating to the false accounts from which the withdrawals were made.

Counts 8-14
[48] These counts pertain to all the accused, including the appellants. They
relate to the Ebony Park robbery that occurred on 12 June 20 08. Counts 9
and 10, respectively, are for the unlawful possession of firearms and
ammunition. Those counts are dealt with se parately below. Regarding the
other counts, the first appellant submits the following: that there is ‘absolutely
no evidence’ that he was inside the post office on the day of the robbery; and
that the high court erred in accepting Mr Moshoene’s evidence. Regarding the
state’s version that an individual who had visited the Ebony Park post office
just before the robbery had writt en the name ‘Onasis’ on a deposit slip and
asked Mr Mosho ene whether he knew who that was , and had further stated
that ‘some peo ple would c ome and finish the job’ , was a member of a
syndicate that was linked to him , the first appellant argued that it is
improbable that a member of a syndicate that was about to rob the post office
would go there to reveal the identity of one of his fellow members.

would go there to reveal the identity of one of his fellow members.

[49] The evidence linking the first appellant to this robbery was not limited
to the note, and is compelling . It could not be disputed that a day before the
robbery the post office was reconnoitred or scouted. Mr Mosho ene also
testified that the indi vidual that did the scouting got into a red BMW when he

25
left the post office . The cell phone data evidence placed the third respondent
in close proximity to the post office a day before the robbery, and shows that
the first app ellant wa s communi cating with the second appellant, who was
identified as one of the actual robbers , who possessed a firearm . There were
six phone calls between them around the time of the robbery. The second
appellant phoned the first appellant shortly before the robbery, and then again
while the robbery was in progress. That evidence also places the cell phone
handset of the first appellant in Ebony Park at the time of the robbery.

[50] According to the evidence , during the robbery the false deposits were
made into the fraudulent post bank accounts opened by the accused 2, and in
which the first appellant was complicit. Logically , the person who m ade those
false entries or deposits into the false accounts during the robbery , must have
had knowledge of the details of those false accounts. These false entries or
deposits were made after the staff in the post offi ce had been closed into the
safe, and after one of the robbers had made a phone call, summoning the one
called to ‘come quickly’ and reporting, ‘we have lock ed them in the safe’ .
Another robber said ‘phone them and tell them we are through’.

[51] The evidence further established that after th e robbe ry t he first
appellant withdrew R1000 from two of the false accounts into which false
deposits were made during the robbery, at Nedb ank, Totius Motors, Crystal
Gate on his way to Daveyton, where he lives. It als o shows that he
communicated with the other a ccused after the robbery. Mr Mosho ene
testified that a week after the robbery, the appellan ts, being under the
impression that he wa s joining their enterprise, informed him that they were
robbing post offices, and its also when the first appellant introduced him to the
second appellant and accused 9 (deceased), whom Mr Moshoene recognised

second appellant and accused 9 (deceased), whom Mr Moshoene recognised
as the perpetrators of the Ebony Par k robbery. They also told him of their
modus operandi. The evidence also showed that the a ppellants and the other
accused were n ot stra ngers to each other, but knew each other more than
casually.

26
[52] The only reasonable infe rence to be drawn fro m all the evidence,
including the direct evidence implicating the appellants, was that this robbery
was an activity , in the pattern of ra cketeering, of an enterprise involving the
accused, which the first appellant managed and the seco nd appellant
knowingly and actively participated in.

Counts 15-16.
[53] These counts only relate to the first appellant and two of the other
accused. It pert ains to the Boksburg North robbery that occurred on 29 June
2008. They are fraud counts. The evidence established that on the morning of
the day prior to the robbery , accused 3 opened false post bank accounts at
the Reiger Park branch of the post office. O ne account was in the name of a
person bearing the surname ‘Leola’ and ano ther in the name of a pe rson with
the surname ‘Motaung’. Shortly after that, accused 3 started communicating
by phone with the first appellant and did so on at least six occasions fr om
about 11 h56 to 15 h20. He opened a second ‘Leola’ account, and also
reissued a bank card in resp ect of the first ‘Leo la’ account. During the
Boksburg North robbery a false entry purporting to be a deposit into this
account was made. Following the robbery accused 3 transacted on the first
‘Leola’ account at various outlets. On 16 July 2008, using the bank cards
relating to the first ‘Leola’ account, a withdrawal was made at the East Rand
Mall from that false account, and on the same date the appellants , who were
proved to have been in Hazyview at the time, used the second ‘Leola’ account
bank card and that of the ‘Motaung’ account to make pur chases at the
Hazyview Pick n Pay and payment at a fuel station there.

Counts 17-29
[54] As regards count 17 , t he eviden ce est ablished conclusively that the
appellants communicated with each other by phone on seve n occasions
before the robbery. According to the cell phone data evidence , at 08h21 the

before the robbery. According to the cell phone data evidence , at 08h21 the
appellants were in close proximity to the Boksburg North post office. The
robbery occurred at 08 h30, before any customer s arrived. After the robbers
left, Ms Desebo Diniso notice d that the hard drives of their computers ha d
been taken. False entries , purporting to be deposits of R80 000, had been

27
made in five of the false account s, namely, t he first and second ‘Leola’
account, the ‘Dube’ and ‘Mabula’ and ‘Motaung’ accoun ts. According to the
evidence, shortly af ter the robbery the appellants co mmunicated with each
other on at least five occasions on that day. After the robbery a R1 000 was
withdrawn from the ‘Dube’ and ‘Mabula ’ accounts. Both appellants were
shown to have been present at the Ea stgate shopping cent re, where the first
appellant also made withdrawals from both those false accounts.

[55] The cell phone data evidence als o showed that in the period following
the robbery the appellants were in the same vicinity where other withdrawals
were made from these false accounts. On 16 July 2008, both appellants were
in Hazyview where transactions were done on the ‘Motaung’ and seco nd
‘Leola’ accounts using the cards that had been issued following the opening of
those false accounts. The uncontested evidence given by Ms Heather Shelton
of the Rynfield Veterinary Clinic was that a bank card, issued in respect of the
false ‘Motaung’ ac count, was used by the first appellant on 10 July 2008 to
pay the clinic two amounts for the treatment of his dog( s). The appellant di d
not dispute that his dog(s) we re treated at the clinic and that he made the
payments. The cell phone data also places hi m at t he clinic on that date. On
3 July 2008, accused 7, at the OR Tambo post bank, processed a R25 000
withdrawal from the false ‘Mot aung’ account. The cell phone data placed the
appellant and accused 2 in the vicinity of that post bank at the time of the
withdrawal. The appellant s could not have b een in possession of the bank
card relating to th e ‘Motaung’ and second ‘Leola’ accounts, unless they were
party to, or complicit in, the opening of those false accounts.

[56] The only reasonable inference to be drawn from all the evidence is that
the appellants were directly involved in all the racketeering activities alleged in

the appellants were directly involved in all the racketeering activities alleged in
these counts. They were correctly convicted on these counts. I will deal
separately with their convictions in respect of counts 18 and 19 which relate to
the possession of arms and ammunition.

Counts 30-34 and 37-46.

28
[57] These counts relate to th e Randjiesfontein br anch robbery that
occurred on 21 July 2008 . Counts 30 to 33 were brought against the first
appellant, accused 2 (deceased), and another accuse d. They are counts of
fraud relating to the opening of false post bank ac counts. Count 34 is t he
actual robbery count, which was also brought against the second appellant.
Counts 37 -41 are similar counts of fraud brought against all the accused.
They relate to false or fictitious deposits made into the different false accounts
on the date of the ro bbery. Counts 42 to 46 are similar counts of theft dealing
with the withdrawal of monies from those false accounts following the robbery.

[58] The evidence established that the robbery was to have taken place on
19 July 2008, but that attempt was foiled. It eventually occurr ed on 21 July
2008. Consistent with the modus operandi of the enterprise, prior to the
robbery false accounts were opened. On 18 July a false account was opened
in the name of ‘K humalo’ at the Khumalo post office in Katlehong and
accused 3 also opened a false ‘Nxumalo’ account. The evidence showed that
at the time of the opening of the ‘Khumalo’ account the first app ellant wa s
close to or at the Khumalo post office and that was at about 13 h47 to 14h12.
The first appe llant communicated te lephonically with ac cused 3 at 09 h47,
11h21, 11 h39, 11 h41, 13 h35, 13 h47, 14 h12, 15 h10 and 18 h30. During the
robbery on 21 July 2008 false entries, purporting to be deposits , were made
into the ‘Khumalo’ and ‘Nxumalo’ accounts using the post office’s equipment.
The cell phone data evidence further showed that the appellants
communicated with each other telephonically 12 times on 19 July 2008, when
the robbery was foiled. On the date of the robbery the first appellant
communicated with th e second appellant, w ho was identified as one of the
robbers, on 28 occasions, 14 of these occasions w ere before the robbery.

robbers, on 28 occasions, 14 of these occasions w ere before the robbery.
Both appellants and two of the other accused were placed at or near the
Randjiesfontein post office at the time of the robbery. Fo llowing the robberies,
monies were withdr awn from those false accounts before they could be
blocked.

[59] Ms Sugar Mokgethi (Ms Mokgethi), branch manage r of the
Randjiesfontein post office in Midrand , inter alia, identified the second

29
appellant in the doc k as the person that was involved in the robbery. She
remembered him because she had seen and interacted with him before. She
testified that he was the o ne that ca me to the branch on a Saturday, just
before closing time, with a box in his possession. He wa s wearing a post
office skipper. She told him that she could not serve him, but because of his
dress she asked him where he was working and he just said ‘Wits Pos’, and
left. He is the same man who entered the branch just before the robbery with
the same b ox and used it as a m eans to gain access to the staff behind the
counter and perpetrate the robbery. The box was used by the robbers to carry
the compute rs out of the br anch a fterwards. This dock identification was
sufficient to sustain the second appellan t’s conviction becaus e it is
reliable.19The only reasonable inference to be drawn from all the evidence is
that the appellants were directly and indirect ly involved in all of the activities
detailed in these counts and were respectively correctly convicted on them.
There is no basis for interfering with the factual findings of the high court.

Counts 52, 55 and 56
[60] These counts relate to the Tembisa North branch robbery which
occurred on 23 September 2008. They apply to both appellants and accused
3. The appellants were conv icted on these count s on the basis of direct and
circumstantial evidence. This included evidence of the first appella nt’s
fingerprint that was uplifted from a paper fixed to the door of the post office
branch at the time of the robbery ; cell phone records and the evidence of Mr
Moshoene. According to the cell phone data evidence the appellants called
each other on eight or nine occasions. Three of the se were before the
robbery. The evidence also places the first appellant , through his handset, in
the vicini ty of the robbery, s hortly before it occu rred. According to the
evidence shortly before the robbery the first appella nt’s phone was switched

evidence shortly before the robbery the first appella nt’s phone was switched
off and remained off for about four hours. The second appellant ’s handset
was also placed at or near the scene of the robbery and he was also linked to
the robbery by his motor vehicle whic h was observed to have been at the
scene at the time of the robbery.

19 See S v Tandwa and Others [2007] SCA 34 (RSA); 2008 (1) SACR 613 (SCA) para 132.

30

[61] Furthermore, Ms Nancy Teffo, the acting branch manager at the time,
testified, inter alia, that two men wearing Bosasa security guard uniforms, and
pretending to be such, held her and her staff up at gunpoint, tied them up and
closed them in the toilet. During the robbery she heard the sounds of the pin
pads of the teller machines that were used to open account s and make
transactions, including withdrawals. She testified that you needed training in
order to work on the computers and the system of the post office. In the
robbery, cash in the amounts of R4900 and R7000, two CP U’s, Mzansi cards
and her cell phone w ere taken. Otherwise , the modus operandi was very
similar to that of the o ther robberies in this case. Instead of making false
entries purporting to be deposits in new false accounts, there was an attempt
to make such entries into old dormant accounts. The timeous blocking of
these accounts following the robbery prevented withdr awals from them. The
high court found that the state had established the guilt of both the appellants,
who were placed at the scene of the robbery, on these counts.

[62] The first a ppellant and accused 2 had tried to recruit Mr Moshoene to
join the ir crim inal enterprise and had explained to him its modus operandi.
Mr Moshoene was also introduced, inter alia, to the second appellant. He met
and socialised with the m on several occasion s. They were plannin g to use
Bosasa security uniforms in their robber y. After the robbery, when Mr
Moshoene went to meet with the first appellant in Daveyton he found the first
appellant with three other people outside a white motor vehicle at the taxi
rank. They were wearing Bosasa Security uniforms and the first appellant was
wearing a Bosasa tie. One of those people was the second appellant. He also
saw a firearm in the vehicle. Mr Moshoene had also identified the second
appellant as a robber in the Ebon y Park robbery. There is no ba sis for

appellant as a robber in the Ebon y Park robbery. There is no ba sis for
interfering with the findings of th e high court. The meticulous cell phone data
evidence was effectively uncontested. It established irrefutably that the
appellants (and the other accused) communic ated frequently with each other
before an d after the robberies. The appellants ’ cell phone han dsets also
placed them at or near the scene of the robbery at the tim e of t he robbery.
The first appellant’s explanation , as to how the note with his fingerprint came

31
to be at the doo r, is palpably false . It seems to have been placed there by
them to deter customers from entering the branch during the robbery. The
second ap pellant’s alibi defence was correctly found not to be credible and
rejected. Taking all the a dmissible evidence in to account pertainin g to these
counts, the only reasonable inf erence is that the appellants planned and
executed the robbery as part of the ra cketeering a ctivity of their criminal
enterprise.

The counts of unlawful possession of firearms and ammunition
[63] The relevant counts are: count 9 (firearms) and 10 (ammunition), which
relate to the Ebony Park robbery ; count 18 ( firearms) and 19 (ammun ition),
relating to the Boksburg North robbery; and count 53 ( firearms) and 5 4
(ammunition), relating to the Tembisa North robbery. The high court convicted
both the appellants on the three counts of possession of firearms ( counts 9,
18 and 53), and the th ree counts of possession of ammunition ( counts 10, 19
and 54). It took all those counts togeth er for the purpose of sentencing. It
imposed a total sentence of nine years’ imprisonment (3 years for each set of
counts) on the first appellant , and a total of fifteen years’ imprisonment (5
years for each set of counts) on the second appellant.

[64] At the hearing before this Court the State correctly conceded that none
of the appellants should have been convicted on any of the counts of being in
unlawful posse ssion of ammunition, because there was no evidence to that
effect. In the clear absence of tha t proof the appellants’ convictions on counts
10, 19 and 54 cann ot stand and should be set aside together with the
sentences imposed in respect of those counts . R egarding the unlawful
possession of firearms, the State also conceded in this Court that in respect of
count 9 there was no evidence th at the first appellant was in possession of a
firearm during the Ebony Park robbery.

firearm during the Ebony Park robbery.

[65] It is now trite that for the first appellant to be found guilty on count 9 the
State ought to have proved either that the f irst appellant person ally (and
unlawfully) possessed a firearm on that occasion, or that he jointly possessed
a firearm which was physically seen to be in the sec ond ap pellant’s

32
possession at the time, in the sense held in S v Nkosi (Nkosi).20 The test for
establishing liabilit y for the unlawful p ossession of firearms a nd ammunition
was formulated in Nkosi 21 as follows:
‘… in deciding whether the group ( and hence t he app ellant) possessed the guns
must be decided with reference to the answer to the question whether the State has
established facts from which it can properly be inferred by a Court that:
(a) [T]he group had the intention ( animus) to exercise possession of the gu ns
through the actual detentor and [;]
(b) [T]he actual detentors had the intention to hold the guns on behalf o f the
group.
Only if both requirements are fulfilled can there be joint possession involving the
group as a whole and the detentors, or commo n purpose between the members of
the group to possess all the guns.’

[66] In S v Makhubela an d Another22 the Consti tutional Court , conf irming
the correctness of the test established in Nkosi, found that the cases surveyed
by it showed the following:
‘… that the re would be very few factual scenarios which meet the requirement to
establish [the] joi nt possession set out in Nkosi. This is b ecause of the difficult y
inherent in proving that the possessor had the intention of possessing a firearm on
behalf of a group. It is clear that, according to established precedent, awareness
alone is not sufficient to establish intenti on of jointly posses sing a firearm or the
intention of holding a firearm on behalf of another in our law.’

[67] In my view, the State correc tly co nceded that the kind of proof
envisaged in those cases is lacking here. Therefor, the co nviction of the first
appellant on count 9 (for possession of a firearm in connection to the Ebony
Park robbery) cannot stand, and is to be set aside together wit h the sentence
imposed in respect thereof. Turning to count 18 , there is no evidence
establishing th at either of th e appellants possessed a firearm( s) in the

establishing th at either of th e appellants possessed a firearm( s) in the
Boksburg North robbery. Therefore, their convictions and the sentences on

20 S v Nkosi 1998 (1) SACR 284 (W).
21 Ibid at 286G-I. Dictum applied in S v Ramoba [2017] ZASCA 74; 2017 (2) SACR 353 (SCA)
para 11. See al so the dissenting judgment in Schoeman v Dire ctor of Publi c Prosecutions
[2025] ZASCA 124; 2025 (2) SACR 561 (SCA); [2026] 1 All SA 95 para 48.
22 S v Makhubela and Another [2017] ZACC 36; 2017 (2) SACR 665 (CC); 2017 (12) BCLR
1510 para 55.

33
this count cannot stand . However, in respect of count 5 3, ie the Tembisa
North robbery, the evidence established that each of the appellant s was a
detentor of a firearm when executing the robbery. Their conviction on this
count was correct.

Summary regarding the appellants’ convictions
[68] To summarise, in respect of the first appellant : (a) his conviction on
count 4 ( for a contravention of s 2(1) (f) of the PO CA), and th e sentence
imposed in that regard , are to be set aside; (b) his convictions and the
sentences imposed in respe ct of counts 10, 19, and 54 (for unlawful
possession of ammunition) are to be set aside; and (c) similarly, his conviction
and sentences in res pect of counts 9 and 18 ( for the unlawful possession of
firearms) are to be set aside; (d) Otherwise, his convi ctions by the high court
on the other counts are confirmed.
In respect of the second appellant; (a) his convictions a nd sentences in
respect of counts 10, 19, and 54 (for the unlawful possession of ammunition)
are to be set aside; and (b) his conviction and sentence in respect of count 18
(for the unlawful possession of firearms) are to be set aside; (c) Otherwise, his
convictions by the high court on the other counts are confirmed.

The sentencing and the cross-appeal
[69] The sentencing of the appellants ne eds to be revisited in light of the
conclusion reached regarding their convictions. It also ne eds to be looked at
again because of t he State’s cross-appeal against the sentences imposed by
the high court on the appellants and the other accused (all of those still alive
were cited as respondents in the cross -appeal), in respect of particular
convictions. The State contends, essentially, the following: (a) Relying on this
Court’s decisio n in Ditlhakanyane, that in respect of the s 2(1) (e)
contraventions of POCA , the h igh court imposed inappropriately low
sentences on them; and (b) in respect of those offences where a mini mum

sentences on them; and (b) in respect of those offences where a mini mum
sentence applies in terms of the Criminal Law Amendment Act 105 of 1997
(the minimum sentencing legislation), and in particular, the aggravated
robbery and certain fraud and theft counts, incorrectly found substantial and
compelling circumstances that justify the imposit ion of sentences lesser than

34
the minimum prescribed sentences; and (c) that the sentences imposed, were
too lenient and ought to be increased, because the high court over -
emphasised the personal circumstances of the accused. Those
circumstances are on record.

[70] In response to the State’s cross -appeal, the other accused, listed as
the second, and fourth to seventh respondents, withdrew their r espective
appeals against their convictions. Despite doing so , the State persisted with
its cross-appeal against their sentences and that of the appellants. The heads
of argument filed in this appeal by Legal Aid South Africa (Legal Aid) , which
had represented all of the accused from the outset, are only filed in respect of
the two appellants, and only deals with thei r conviction s on the various
counts. Two paragraphs of those heads tersely deal with the question of the
sentence, and in particular as follows:
‘136. It is submitt ed that the learned justice correctly applied the s entencing
principles and he has had regard to all factors traditionally considered and came to a
just and appropriate sentence.
137. It is submitted that in ordering co ncurrency of sentences, the trial Cou rt applied
a measure of mercy when imposing sentence.’

[71] Further, the oral submissions made by the L egal Aid, were only made
on behalf of the two appellants. The State’s cross -appeal in respect of the
sentences of the other accused, cited as the second, and fourth to seventh
respondents, is accordingly unopposed. Seemingly, all the respondents in the
cross-appeal, including the appellants, have been a dequately forewarned of
the implications of the cross -appeal. Presumably, they were all appropriately
advised in that regard, and they made their choices regarding the cross -
appeal on the basis of such advice.

[72] It is trite that this Court can interfere with the sentence imposed by the
lower court where that court er red in the exercise of its discretion when

lower court where that court er red in the exercise of its discretion when
sentencing, or where there is a shocking disp roportion between the imposed

35
sentence an d the sentenc e which this Court would impose 23. It is also tri te
that this Court can so interfere in an appeal by an accused or by the State,
and that this Court can increase the sentence imposed by the lower court.

The sentences for the POCA contraventions
[73] The s entences imposed on the appellants and the other accused for
the contravention of s 2(1) (e) were as follows: (a) t he first appellant (accused
1) - 10 y ears’ imprisonment (he was also sente nced to 18 yea rs’
imprisonment for contravening s 2(1)( f)); the second appellant (accused 8) –
12 years’ imprisonment; accused 3 – 8 years’ imprisonment; accused 4 – 5
years’ imprisonment; accused 5 – 5 years’ imprisonment accused 6 – 5 years’
imprisonment; and accused 7 – 5 years’ imprisonment.

[74] In its c ross-appeal t he State se emingly implies that the sentence
determined by this Court in Ditlhakanyane ought to be some sort of st andard
for the length of the sentences that ought to be imposed for this offence. The
activities of the enter prise and those of t he convicted in that cas e were
serious, but lesser so than those in this matter, which suggests that the
accused in this case o ught t o be sentenced more sever ely. While that is
logically correct, there is a conceptu al difficulty with th is Court’s approach in
Ditlhakanyane that complicates the situation.

[75] In Ditlhakanyane this Court approached the sentences envisaged in
s 3(1) of the POCA a s prescribed senten ces, which courts could not lightly
deviate from and without good reason. This is apparent from its conclusion
that the trial court there ‘ … deviated from the prescribed sentence without
providing reasons therefor’ .24 On tha t b asis it interfered and increased the
effective sentence of the full court , from 20 years’ to 30 years’ imprisonment,
thus, restoring the sentence imposed by the trial court in that matter. This
Court expressed the view that it ‘is still not clear’ why t he full court ‘perceived

Court expressed the view that it ‘is still not clear’ why t he full court ‘perceived
the sent ence imposed by the trial court to be unduly harsh when the

23 See S v Malga s 2001 (1) SACR 46 9 (SCA); [2001] 3 All SA 22 0 (A); 2001 ( 2) SA 1222
(SCA) (Malgas) para 12. See also S v Moagi [2025] ZASCA 188; [2026] 1 All SA 301 (SCA);
2026 (1) SACR 457 (SCA) para 23.
24 Ditlhakanyane para 46.

36
legislature pres cribed a much higher sentence.’ Th e wording of that
conclusion purports to be based on an erroneous premise that the legislature
prescribed sentenc es, when in reality the legislatu re merely set maximum
sentences for a contravention of that section. The maximum sentence is a fine
of R1 billion, or imprisonment up to life imprisonment. Section 3(1) reads:
‘Any person convicted of an offence referred to in section 2(1) shall be liable to a fine
not exceeding R1000 million, or to imprisonm ent for a period up t o imprisonment for
life.’

[76] It is noteworthy that the section does not prescribe minimum
sentences, but it sets maximum sentences. Section 3(1) envisages a fine or
imprisonment. Its wording unambiguously recognises a gradation of
seriousness. The less serious contraventio ns, which do not deserve a
custodial sentence, may be punished by means of a fine : a low fine for the
less egregious, and a ste eper fine for the more egregious . The highest fine
being reserved for the most egregious of those kinds of contravention. Thus, if
the circumstances indicate that a custodial sentence is the only appropriate
sanction, a sentence of imprisonment would have to be imposed. The period
of impr isonment would depend on the seriousness of the offence . Life
imprisonment is reserved for the most serious of those contraventions.

[77] Even if it is assumed that this Court in Ditlhakanyane intended to
convey that the s entence or punishment of the full court in that matter did not
reflect the seriousness in which the legi slature and the POCA viewed the
contravention, it does not appear from that judgment what measure was used
to determine that a sentence there of 20 years’ imprisonment was too lenient
and that a sentence of 30 years was appropriate. No case s were used as
guideline for pitching the sentence at a particular point on the continuum that
culminates in the most severe custodial sentence, life imprisonment. The

culminates in the most severe custodial sentence, life imprisonment. The
activities of the enterprise in t his matter are, by comparison with those of the
enterprise in that matt er, far more serious. Her e the modus operandi was not
merely fraud and theft, but also armed robbery. Generally, depending on the
personal circumstances of the perpetrators, the contrav ention in this case
deserves a more severe sentence. If one uses Ditlhakanyane as a guide, that

37
means a sentence, in excess of 30 years’ imprisonment, if not far in excess of
it, has to be i mposed on the appellants (and the other respondents in this
matter) because of its comparative egregiousness.

[78] This Court has warned that the imposition of e xcessively long
sentences is, generally, unrealistic and serves no genuine rehabilitative
purpose, and emphasised that there is a risk of such sentences being
perceived as only designed for public consumption 25. This Court has also
described a sentence of i mprisonment of 25 years as ‘a very severe
punishment which should be reserved for particularly heinous offences. ’26 A
‘heinous offence’ is an extremely evil or h orrible offence. Granted that those
remarks were made i n matters involv ing o ther offences, but if 25 years’
imprisonment constitut es ‘severe punishment’, it remains such whatever the
offence. This matter is very serious, bu t n ot the most heinous , or for th at
matter the most egregious of the contraventions of s 2(1)(e) of the POCA.

[79] Against that background I will now consider the sentences imposed on
the individual accused (including the appellants) . In the case of the f irst
appellant, the high court im posed the sentence of 10 year’s imprisonment for
the contravention of s 2(1)(e), presumably, because it also convicted him of a
contravention of s 2(1) (f). In re spect of the latter , it imposed a sentence of
18 years’ imprisonment. For the reasons traversed earlier, the conviction for
both the counts was irregu lar. He could only ha ve been convicted for the
contravention of s 2(1)(e), but the sentence of 10 years’ imprisonment is in
those circumstances shockingly inadequate an d lenient. Interference with that
sentence is justified. The fact that the second appellant, whose role was much
lesser than that of the first appellant, was sentenced to 12 years’
imprisonment for contravening s 2(1)(e) underscores that point. The sentenc e
of 12 years is, in any event, in my view also too lenient.

of 12 years is, in any event, in my view also too lenient.

25 S v Mhlakaza and Another 1997 (1) SACR 515 SCA ; 2 All SA 185 (A) at 519 G-I; S v
Nemutandani [2014] ZASCA 128; 2014 JDR 1898 (SCA) (Nemutandani) para 8.
26 S v Muller and Another [2011] ZASCA 151 ; 2012 (2) SACR 545 (SCA) para 9-10;
Moswathupa v The State [2011] ZASCA 172 ; 2012 (1) SACR 259 (SCA) (Moswuthapa) para
10; Nemutandani para 8. See also S v Ndo u [2019] ZASCA 85; 2019 (2) SACR 243 (SC A)
para 26.

38

[80] Having re gard to the nature of the offenc e, the respective personal
circumstances of the first and second appellants, and the interests of society ,
a sentence of 20 years’ imprisonment for the first appellant and a sente nce of
15 years’ imprisonment for the second appellant f or t he contravention of
s 2(1)(e) of the POCA, is just and fair. Taking all the factors relevant to
sentencing into account, the sentences imposed on, respectively, the , third,
fourth, fifth, sixth and seventh accused for this contravention appears just and
fair. Their roles, in my estimation, were far lesser than those of the appellants.

The counts in respect of which a minimum sentence is prescribed
[81] Turning to t he sentences in respect of those counts where there are
minimum sentences. In respect of counts 8, 17 and 51, that is for robbery with
aggravated circumstances, read with the minimum sentencing legislation , a
minimum sentence of 15 years’ imprisonment is p rescribed. On those counts
the f irst appellant was sentenced to 10 y ears’ imprisonment o n each count.
Accused 3 was sentenced to 5 years’ imprisonment on each count. Accused
5, accused 6 , and accused 7 were respectively sentence d to 3 years’
imprisonment on each of those counts.

[82] In respect of counts 37 – 41, which are counts of fraud re ad with the
minimum s entencing legislatio n, a minimum sentence of 15 years’
imprisonment is prescribed. The high court imposed a sentence of 2 years’
imprisonment on each of those counts on each of the accused (including both
appellants). And in respect of counts 42 -46, which are counts of theft read
with the minimum sentencing legislation, a minimum sentence of 15 years’
imprisonment is prescribed. Each of the accused (including the appellants)
were r espectively sentenced to 2 years’ imprisonment in respec t of each of
those co unts. And in respect of count 34, robbery read with the minimum
sentencing legislation, a sentence of 10 years’ imprisonment is prescribed.

sentencing legislation, a sentence of 10 years’ imprisonment is prescribed.
Each of the accused (including the appellants) were respectively sentenced to
2 years’ imprisonment on that count.

39
[83] It is apparent that, generally, the high court did not impose the
minimum sentences in respect of the counts where it is prescribed. T hat is
only justified if substantial and compelling factors are found justifying the
imposition of a lesser sentence. First, the State contends that the high court
was not justified in this insta nce, because it did not put on record w hat those
factors were. This contention is not entirely borne out by the record.

[84] In respect of the first appella nt, the high court, u pon considering his
personal circumstances, which are stated on the record, found that his ‘ …
personal circumstances do amount to weighty mitigatin g considerations that
justify the imposition of lesser sentences and a departure from th e minimum
sentences p rescribed …’ in the minimum sentencing legislation. The high
court found and recorded the same in respect of accused 3 (Mr Marakalala)
and accused 4 (Mr Ledwaba). And i n respect of accused 5 (Ms Ndlela),
accused 6 (Ms Molotsane) and accused 7 (Ms Pitjeng), the high court notes
their personal circumstances, but does not specifically record what the factors
are that justified t he imposition of lesser s entences on them , but it is very
probable that their circumstances, that are on record, could also have been
the justification.

It has been held by this Court that it is not possible to give ‘an all -embracing
definition’ to the term ‘substantial and comp elling circumstances.’27 The
sentencing court is to consider all the facts and circumstan ces and to
determine whether they are ‘su bstantial and compe lling’ to justify the
imposition of a sentence lesser that the prescribed minimum sentence. The
determination i s to be made with the understanding that the prescribed
minimum is not to be departed from lightly or for frivolous reasons28. The high
court cannot be faulted regarding those findings.

[85] In respect of the second appellant , the high court specifical ly found:

[85] In respect of the second appellant , the high court specifical ly found:
that he ‘carried out the robberies and he was positively and reliably identifi ed
wielding a firearm in at least 2 of th e armed robberies. The mitigating [factors]

27 Malgas.
28 Ibid.

40
are in his case therefore outweighed by the aggravating factors. The
eyewitnesses working at the post offices he robbed are still traumatised. One
of them actually wept wh en she saw the accused in the dock. There are
therefore no substantial and compelling circumstances to impose a lesser
sentence for the crim es under Section 51(2) of Ac t 105 of 1997. In his case
the sentences for armed robberies will be the primary sentenc e.’ The high
court then went on to impose a sentence of 20 years’ imprisonment on him in
respect of each of the aggravated robbery counts, but imposed lesser
sentences than the prescribed minimum sentences in respect of the
convictions on the fraud and the ft counts. The sentences of 20 year s’
imprisonment for the aggravated robbery counts were in fact in excess of the
prescribed minimum sentence of 15 years.

[86] Regarding the sentences imposed in respect of the multiple fraud and
theft accounts, which each of the respondents (including the appellants) were
convicted of, the following is also relevant. Even though it assigned a number
of years to each count, the high cou rt appears, in effect, to have taken all the
fraud and theft counts as one for the purpo se of sentencing . Ultimately, it
imposed a total sentence in respect of those counts , because these offences
were effectively linked. Thus, the high court imposed in th e case of the first
respondent (first appellant ) a total of 48 years’ imprisonment for 2 4 counts of
fraud and 24 years for 12 counts of theft. In his case it also did the same with
the 3 counts of aggravated robbery. The second appellant was sentenced to a
total of 28 years for 14 counts of fraud and 24 years for 12 counts of theft.
Accused 3 (Mr Marakalala) got 30 years for 15 coun ts of fraud and 22 years
for 11 counts of theft. Accused 4 (Mr Ledwaba) got 26 years for 13 counts of
fraud. Accused 5 (Ms Ndlela), accused 6 (Ms Molotsane) and accused 7 (Ms

fraud. Accused 5 (Ms Ndlela), accused 6 (Ms Molotsane) and accused 7 (Ms
Pitjeng), each got 28 years for 14 count s of fraud and 20 yea rs for 10 counts
of theft.

[87] In my view the State has not established a basis for interfering with
those sentences. The high court was undoubtedly aware of the mitigating and
aggravating factors, as well as the cumulative effect o f the sentences , and
guarded against the aggregate punishment in the case of each accused

41
becoming excessive and disproportionately severe, and being unrealistic. This
Court has held that where multiple offences need to be punished, the
sentencing court ha s to seek an appropri ate sentence for all offences taken
together, and that it must guard against imposing a n aggregate penalty that is
unduly severe. 29 Ultimately, ‘s entencing is pre -eminently a matter for the
discretion of the trial court’. It is a diffic ult exercise , involvi ng the balancing
and grading of all the relevant factors .30 Another factor to consider is that the
respondents were sentenced on 20 November 2012. The matter came before
this Court , more than 13 years (13 years and 4 months) later, on 6 March
2026.

The Imposition of a non-parole period on the second appellant
[88] Before leaving the issue of sentence, it is necessary to deal with t he
high court’s i mposition of a non -parole period in respect of the second
appellant (Mr Nkosi). As part of its sentencing the high court ordered in terms
of s 276 B(1) of the CPA that the second appellant was not eligible for parole
until he has served 12 years of his effe ctive 20 years of imprisonment. It is
now confirmed by the Constitutional Court that a non -parole period can on ly
be imposed if there are exceptional circumstances present which warrant that
order, and the parties were given an opportunity to make submissions on the
issue.31 It does not appear from the record that this occurred here. At the
hearing before this Court the State counsel correctly conceded that the high
court erred or acted irregularly in imposing the non -parole period in those
circumstances. This was not one of the grounds of the second appellant’s
appeal, but by virtue of this Cour t’s power it can inte rfere with that imposition
in the interests of justice and set it aside.

Conclusion
[89] In summary, the first appellant should be convicted and sentenced as
follows:

29 Moswathupa para 8 . See also S v Cele [2025] ZASCA 199; 2 026 (1 ) SACR 445 (SCA)

29 Moswathupa para 8 . See also S v Cele [2025] ZASCA 199; 2 026 (1 ) SACR 445 (SCA)
para 30.
30 See, inter alia, S v Rabie 1975 (4) SA 855 (A) at 862 A-B and 862 G-H; S v Banda 1991 (2)
SA 352 (BG) at 354E-G and 355A-B.
31 S v Sithole [2024] ZACC 31; 2025 (1) SACR 349 (CC); 2025 (6) BCLR 693 para 27.

42
a. Count 3 ( contravening s 2(1) (e) of POCA ) – 20 years’
imprisonment.
b. 24 counts of fraud – 2 years’ imprisonment for each count.
c. 3 counts of aggravated robbery – 10 years’ imprisonment for
each count.
d. 1 count of unlawful possession of a f irearm – 3 years’
imprisonment.
e. Count 34 (robbery) – 7 years’ imprisonment.
f. 12 counts of theft – 2 years’ imprisonment for each count.
g. All the sentences are to be antedated to 30 November 2012.
h. Except for 3 years imposed in respect of the aggravated robbery
counts, all the sentences a re to run concurrently with the
sentence imposed in re spect of count 3. Thu s, the effective
sentence of the first appellant is 23 years’ imprisonment.

[90] In summary, the second appellant should be convicted and
sentenced as follows:
(a) Count 3 – 15 years’ imprisonment.
(b) 3 counts of aggravated robbery – 20 years’ imprisonment for each
count.
(c) Count 34 – 12 years’ imprisonment.
(d) 2 counts of unlawfu l poss ession of firearms – 10 years’
imprisonment.
(e) 14 counts of fraud - 2 years’ imprisonment for each count.
(f) 11 counts of theft – 2 years’ imprisonment for each count.
(g) The sentences are all antedated to 30 November 2012.
(h) Except for 5 of the years imposed for the aggravated robberies, all
the sentences are to run concurrently with th e n ew sentence
imposed for count 3. Thus, Mr Bongani Nkosi (the second
appellant) is sent enced to an effective period of 20 years’
imprisonment.

[91] The cross -appeal falls to be dismissed in respect of the s entences
imposed on the third to seventh accused.

43

Order
[92] The following order is granted:

1. The appeals of both appellants are partially upheld to the extent set out
hereunder.
2. The cross -appeal in respect of the sente nces i mposed on the
appellants is partially upheld to the extent set out hereunder.
3. In respect of the first appellant (Mr Onasis Maxam):
3.1 The convictions and sentences on t he following counts a re set
aside: Count 4 (contravening s 2(1) (f) of the POCA); counts 9 and
18 (the unlawful possession of firearms); and counts 10, 19 and 54
(the unlawful possession of ammunition).
3.2 The first appellant’s conviction s on the remaining cou nts are
confirmed.
3.3 The sentence in respect of count 3 (contravening s 2(1)(e) of the
POCA) is set aside and is substituted with a sentence of 20 years’
imprisonment. The other sentences are confirmed.
3.4 All the sentences are antedated to 30 November 2012.
3.5 Except for 3 years impo sed in respect of the aggravated robbery
counts, all the sentences are to run concurrently with the sentence
imposed in respect of count 3. Thus, the effective sentence is 23
years’ imprisonment.
3.6 The first appellant is declared unfit t o possess a firearm a s
contemplated in s103 of Act 60 of 2000.
4. In respect of the second appellant (Mr Bongani Nkosi):
4.1 The convictions and sentences imposed in r espect of the following
counts are set aside: c ount 18 (the unlawful possession of
firearms), an d counts 10, 19 and 5 4 (the unlawful possession of
ammunition).
4.2 The second appellant’s convictions on the remaining counts are
confirmed.
4.3 The sentence imposed in respect of count 3 (for contravention of s
2(1)(e) of the POCA) is set aside and is replaced w ith a sentence

44
of 15 years’ imprisonment. The sente nces in respect of the other
convictions, and the declaration of his unfitness to possess a
firearm, are confirmed.
4.4 All the sentences are antedated to 30 November 2012.
4.5 Except for 5 of the years imposed fo r the aggravated robberies, all
the sentenc es are to run concurrently with the new sentence
imposed for count 3. Thus, the effective sentence is 20 years ’
imprisonment.
4.6 The non-parole period imposed by the high court is set aside.
4.7 The seco nd appellant is d eclared unfit to poss ess a firearm as
contemplated in s103 of Act 60 of 2000.
5. The cross -appeal is otherwise dismissed al so in respect of the
sentences imposed on the third to seventh accused.





______________________
P COPPIN
JUDGE OF APPEAL

45
Appearances

For the Appellants: M P Milubi
Instructed by: Legal Aid South Africa, Johannesburg
Legal Aid South Africa, Bloemfontein

For the Respondents: A M Williams
Instructed by: Director of Public Prosecutions, Johannesburg
Director of Public Prosecutions, Bloemfontein.