Khobane v The State

The appellant, Donald Khobane, was employed by Nedbank as an ATM consultant responsible for balancing and cash-replenishing nine ATMs in Johannesburg. He absconded from work on 30 July 2009. Subsequent inspections revealed cash shortages in excess of R3 million from the ATMs under his control. He was arrested on 19 August 2009 and granted bail. He made a confession (later disavowed) indicating he had come under the influence of a 'spiritual healer' called Professor Zao, who convinced him to take money from the ATMs promising it would be returned after 'cleansing'. He was arraigned before the Alexandra Regional Court on 24 August 2011 on a charge of stealing over R3 million from Nedbank during the period between 30 July 2009 and 1 August 2009. He was legally represented, pleaded not guilty, but was convicted on 4 September 2012. The charge sheet made no reference to the Criminal Law Amendment Act 105 of 1997 (minimum sentence legislation), nor was the appellant warned at the commencement of trial that he faced a possible 15-year imprisonment sentence under the Act. He was 28 years old at the time of the offence, a first offender with two young children. The magistrate found no substantial and compelling circumstances and sentenced him to 15 years' imprisonment in terms of the Act. Leave to appeal was refused by the magistrate, and later by the Gauteng Local Division. The appellant then petitioned the Supreme Court of Appeal, which granted leave to appeal.

• Whether the failure to warn an accused person about the risk of minimum sentence legislation being applied constitutes an unfair trial
• Whether the charge sheet must make reference to the Criminal Law Amendment Act when minimum sentences may apply
• Whether the high court should have granted leave to appeal against sentence
• Whether there were reasonable prospects of success on appeal against the sentence
• What are the procedural requirements for criminal petitions and appeals under the Superior Courts Act

1. The appeal is upheld. 2. The order of the court below refusing leave to appeal is set aside and replaced with the following: 'Leave to appeal to the Gauteng Local Division of the High Court, Johannesburg is granted.'

Where the State intends relying upon the minimum sentencing regime created by the Criminal Law Amendment Act 105 of 1997, a fair trial will generally demand that this intention be brought to the attention of the accused at the outset of the trial, if not in the charge sheet then in some other form, so that the accused is placed in a position to properly appreciate in good time the charge faced and its possible consequences. The failure to warn an accused person of the risk of minimum sentences, particularly where the charge sheet makes no reference to the Act and where the statutory minimum sentence is severely at variance with common law sentencing for that offence, may constitute an unfairness that gives rise to reasonable prospects of success on appeal against sentence. In criminal petition proceedings, a refusal of leave to appeal by a high court is appealable to the Supreme Court of Appeal, and if successful, the matter must be remitted to the high court to hear the appeal, rather than the Supreme Court of Appeal deciding the substantive appeal itself.

The court made several notable obiter observations: (1) It would not be improper for a magistrate to ask at the commencement of trial whether an accused person knows that if convicted they are at risk of a substantial sentence under minimum sentence legislation - a few 'delicate immersions' by the magistrate would not constitute improperly 'descending into the arena' but would balance fair trial rights against proper prosecution of crime. (2) The court expressly lamented the 'cumbersome and wasteful' nature of the criminal petition procedure, describing it as 'convoluted' and involving 'obvious injustices', stating it would be in the interests of the State, the appellant and society if the court could directly set aside the sentence and remit for re-sentencing, but that this was precluded by the legislation as it currently stands. (3) The court noted that while Malgas emphasized respecting legislative intent regarding minimum sentences, it did not dispense with the right of an accused to be treated fairly when it comes to sentence - 'the contrary is true'. (4) The court observed that the facts of the case involving the 'spiritual healer' were 'so bizarre that they cry out for a full investigation before the imposition of sentence'.

This case reinforces the constitutional imperative that accused persons must be properly warned when facing minimum sentence legislation under the Criminal Law Amendment Act. It emphasizes that fair trial rights include being informed with sufficient particularity of the charges and their consequences. The judgment highlights the importance of procedural fairness in sentencing, particularly where statutory minimum sentences represent a severe departure from common law sentencing for the offence. The case also illustrates the convoluted nature of the criminal petition procedure under South African law, which the court openly criticized as 'cumbersome and wasteful of both time and money'. The judgment serves as a reminder to prosecutors and magistrates of their obligations to ensure accused persons are properly informed of the sentencing regime that may apply to them.