Khobane v S

The appellant, Donald Khobane, was employed by Nedbank as an ATM consultant responsible for balancing and replenishing nine ATMs in Johannesburg. He absconded from work in July 2009, after which an inspection revealed cash shortages exceeding R3 million from ATMs under his control. He was arrested and later charged with theft of more than R3 million from his employer. Although legally represented, the charge sheet did not refer to the applicability of the Criminal Law Amendment Act 105 of 1997 (minimum sentence legislation), nor was he warned by the magistrate that he faced a prescribed minimum sentence of 15 years’ imprisonment. He was convicted and sentenced by the regional court to 15 years’ imprisonment. His applications and petitions for leave to appeal against sentence were dismissed by the magistrate and the Gauteng Local Division, leading to an appeal to the Supreme Court of Appeal.

The appeal was upheld. The order of the Gauteng Local Division refusing leave to appeal was set aside and replaced with an order granting the appellant leave to appeal to the Gauteng Local Division of the High Court, Johannesburg, against sentence.

The case reinforces the importance of fair trial rights in sentencing, particularly the duty to inform an accused of the applicability of minimum sentence legislation. It affirms that failure to warn an accused of prescribed minimum sentences may justify appellate interference. The judgment also clarifies the convoluted criminal petition and appeal procedure in South African law and confirms the Supreme Court of Appeal’s approach under both the repealed Supreme Court Act and the Superior Courts Act.