About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2023
>>
[2023] ZAFSHC 268
|
|
S v Kali and Others (R19/2023; R20/2023; R21/2023; R22/2023; R23/2023; R24/2023; R25/2023; R26/2023) [2023] ZAFSHC 268 (10 July 2023)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Case
no: R19/2023
R20/2023
R21/2023
R22/2023
R23/2023
R24/2023
R25/2023
R26/2023
REPORTABLE: YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
CIRCULATE TO MAGISTRATES:
YES/NO
In the matter between:
THE STATE
And
NTSANE
KALI
TANKI
MOKWATSI
TEBELO
MANGOEJANE
MATSHELISO
MAHAKALA
NTEBOHENG
THULO
BOITUMELO
MAKOPOI
TSELE
PITSA
KHEBE
MATSOSO
CORAM:
OPPERMAN, J
et
CRONJé,
AJ
DELIVERED
ON:
10
JULY 2023
JUDGMENT
BY:
CRONJé, AJ
I
INTRODUCTION
[1]
The magistrate for Ficksburg sent eight (8) cases for
automatic
review under section 302 of the Criminal Procedure Act, 1977
(CPA). The persons convicted were unrepresented, pleaded guilty and
were sentenced for contravening section 49(1)(a), read with
Section 1
of the
Immigration Act, 13 of 2002
.
II
THE
IMMIGRATION ACT, 2002
[2]
Only the salient provisions of the Act will for purposes of this
judgement be referred to. The
Preamble states,
inter alia
:
“ …
the
managed;
(g)
immigration
laws
are
efficiently
and
effectively
enforced,
deploying
to
this
end
significant
administrative capacity of the Department of Home Affairs, thereby
reducing the pull factors of illegal immigration;
(h)
the South African economy may have access at all times to the full
measure of needed contributions by
foreigners;
(i)
the
contribution
of
foreigners
in
the
South
African
labour
market
does
not
adversely
impact
on
existing labour standards and the rights and expectations of South
African workers;
…
(l)
immigration control is performed within the highest applicable
standards of human rights protection;
(m)
xenophobia is prevented and countered;
(n)
a human rights based culture of enforcement is promoted; and
…
(p)
civil society is educated on the rights of foreigners and refugees.”
[3]
The Act provides for maximum sentences of 2 years imprisonment or a
fine of R5 000.00.
III
PRINCIPLES IN SENTENCING
[4]
A perusal of the records show that the same prosecutor and same
magistrate
[1]
dealt with the
matters. The sentencing methodology of the magistrate in the cases
shows a pattern and for this reason all the matters
are dealt with in
this judgment. The principles applicable to sentencing should be the
starting point.
[5]
It has been stated that a court has to search for a sentence which
will be appropriate, considering
all the circumstances of the case.
It does not mean that there is only one such sentence, and that the
court should search for
that one sentence. An appropriate
sentence need not be the only appropriate sentence.
[2]
The C
ourts
have to consider all three elements of the triad of
Zinn
[3]
to determine accurately the weight of each element within the
circumstances of the case, and impose a sentence that represents
the
best balance of these weights.
[4]
[6]
In respect of incarceration as a sentencing option, the
Constitutional Court in
S
v Dodo
[5]
noted:
“
[38]
To attempt to justify any period of penal incarceration, let alone
imprisonment for life as in the present case,
without inquiring into
the proportionality between the offence and the period of
imprisonment, is to ignore, if not to deny, that
which lies at the
very heart of human dignity. Human beings are not commodities to
which a price can be attached; they are creatures
with inherent and
infinite worth; they ought to be treated as ends in themselves,
never merely as means to an end. Where the
length of a sentence,
which has been imposed because of its general deterrent effect on
others, bears no relation to the gravity
of the offence (…)
the offender is being used essentially as a means to another end and
the offender’s dignity assailed.
So too where the reformative
effect of the punishment is predominant and the offender sentenced to
lengthy imprisonment, principally
because he cannot be reformed in a
shorter period, but the length of imprisonment bears no relationship
to what the committed offence
merits. Even in the absence of such
features, mere disproportionality between the offence and the period
of imprisonment would
also tend to treat the offender as a means to
an end, thereby denying the offender’s humanity.”
[7]
In
Dwayi
and another v S
[6]
it was held:
“
[5]
Whilst it is true that the sentence imposed must serve all the
objects of punishment including deterrence,
it remains the duty of
the trial court to achieve the balance between the interests of
society, on one hand, and the interests
of the individual accused, on
the other. Furthermore, it is accepted that the act of balancing
those conflicting interests cannot
be measured with mathematical
precision (S v Martin
1996 (2) SACR 378
(W)).
However, it remains the duty of the trial court to strive to achieve
that delicate balance.”
[8]
O
ne
should be cautious not to be lured into thinking that a heavy/long,
or the maximum sentence, is the only appropriate sentence.
In
S
v Scott-Crossley
[7]
it was held:
“
[34]
The natural indignation that the community must feel at the
appellant’s conduct warrants appropriate recognition
in the
sentence. Nevertheless that can hardly invite a sentence that is out
of proportion to the nature and gravity of the offence.
Against the
public interest must be weighed the unblemished record of the
appellant, who, at the time of the commission of the
offence, was a
useful member of society upon whom some 100 people and their families
were economically dependant [sic]. To his
credit, the appellant has
expressed contrition and remorse.
[35]
Plainly any sentence imposed must have deterrent and
retributive force. But of course one must not sacrifice an
accused
person on the altar of deterrence.
Whilst
deterrence and retribution are legitimate elements of punishments,
they are not the only ones
,
or for that matter, even the over-riding ones. Against that must be
weighed the appellant’s prospects of reformation and
rehabilitation, which appear to be good. It is true that it is in the
interests of justice that crime should be punished. However,
punishment that is excessive serves neither the interests of justice
nor those of society.”
[my
emphasis]
[9]
In
Mhlakaza
and another v S
[8]
the Supreme Court of Appeal also cautioned against the belief that
the length of imprisonment is proportionate to deterrence:
“
Deterrence
has two aspects: deterring the prisoner and deterring others. The
effectiveness of the latter is unclear (…) but,
according to
judicial precedent, it remains an important consideration (…).
As far as deterring the accused is concerned, it should be borne in
mind that there is no reason to believe that the deterrent
effect of
a prison sentence is always proportionate to its length
(S v Skenjana
1985 (3) SA 51
(A)
54I-55A). …
Whether
long-term imprisonment has any rehabilitative effect, has also been
doubted
. …
Whether
or not this scepticism is fully justified, the point is that the
object of a lengthy sentence of imprisonment is the removal
of a
serious offender from society. Should he become rehabilitated in
prison, he might qualify for a reduction in sentence, but
it remains
an unenviable, if not impossible, burden upon a court to have to
divine what effect a long sentence have on the individual
before it.
Such
predictions cannot be made with any degree of accuracy
.
To revert to the argument under consideration. It seems to me that
the learned Judge may well have overemphasised deterrence of
others
as a main sentencing object.”
[my
emphasis]
IV
INTERFERENCE IN A COURT’S DISCRETION IN SENTENCING
[10]
The powers of a reviewing judge whether under section 302(1) or
section 304(4) of the CPA are akin to those
of a court of appeal.
In
S
v Jacobs
[9]
it
was
stated:
"Although
s 302(1)(a) is couched in terms of a review of the sentence which was
imposed, and although review powers are ordinarily
confined to
considering whether there was any irregularity in the
proceedings, because s 303 requires certification
that the
proceedings are in accordance with justice the reviewing judge is
required to evaluate whether the entire proceedings
i.e. those
pertaining both to the sentence as well as the merits of the
conviction are not only formally in order and regular,
but also
whether they are fair, and in doing so it has long been accepted that
the reviewing judge exercises a function akin to
that ordinarily
exercised by an appellate court. As such, the process of automatic
review is aimed at ensuring both the validity
as well as the fairness
of the underlying conviction and sentence and the powers of the
reviewing judge are extremely wide and
include not only the power to
alter or reduce the sentence imposed but also the power to quash the
conviction or to set aside
“or correct" the
proceedings or to make any other order which may promote the ends of
justice."
[11]
In
Maila
v The State
[10]
the Supreme Court of Appeal confirmed that a court of appeal is not
at liberty to interfere unless the court
a
quo
committed a material misdirection:
“
[43]
It is trite that sentencing or punishment is pre-eminently a
matter of discretion of the trial court. A court exercising
appellate
jurisdiction cannot, in the absence of a material misdirection by the
trial court, approach the question of sentence
as if it were the
trial court and then substitute the sentence arrived at by it simply
because it prefers it. To do so would be
to usurp the sentencing
discretion of the trial court.
[44]
Where, however, a material misdirection by the trial
court vitiates its exercise of that discretion, an appellate
court is
of course entitled to consider the question of sentence afresh. In
doing so, it assesses sentence as if it were a court
of first
instance and the sentence imposed by the trial court has no
relevance.”
V
OVERVIEW OF CASE LAW ON SENTENCING UNDER THE
IMMIGRATION ACT
[12
]
There are few reported cases on sentencing. In
S
v Mudenda
[11]
the
accused
was a mechanic by profession and had been in the country without
proper documentation since 2006. He remained undetected
by the South
African authorities until 6 August 2019 (thus approximately 13 years)
when he was stopped at a roadblock while conveying
passengers in a
minibus taxi. He was unmarried but had two children whom he supported
and who resided with their mother. He was
in custody for a period of
5 months whilst awaiting trial. He was a first offender who pleaded
guilty to the offence. He was
sentenced to an effective 8
months' imprisonment.
[13]
In
Abore
v Minister of Home Affairs and Another,
[12]
the Court sentenced the accused to 50 days’ imprisonment with
an option to pay a fine of R1 500.00.
VI
THE EIGHT CASES UNDER REVIEW
[14]
All the accused in the matters before us were sentenced to direct
imprisonment of between 12 months and two
years.
S
v Tebelo Mangoejane – R13/2023 - A72/2023
[15]
He was convicted and sentenced to two (2) years’ imprisonment
on 14 February 2023.
[16]
He is 22 years old, unmarried and has no children. He was employed in
the construction industry at Vereniging
since August 2022 and earned
R1 000.00 per month. He returned to Lesotho in December 2022 and
was arrested as he was again
leaving Lesotho making his way back to
Vereniging. He pleaded guilty to the charge.
[17]
On questioning him what type of sentence he wishes the Court to
impose, he answered: “
Any sentence that the Court can give
me
”.
[18]
The State argued that “
they
” (presumably referring
to illegal immigrants) show a shocking disregard for the laws of
South Africa. The accused admitted
to paying a bribe (the official
that was bribed not being named) and that this should be an
aggravating factor in sentencing.
Reference was made to the
fact that corruption is rife in South Africa and that the accused
basically admitted contributing towards
corrupt practices. The
fact that the Accused also crossed the border twice unlawfully was a
factor. The prosecutor
argued for a sentence of one (1) year
imprisonment.
[19]
In sentencing, the Court noted that he is a first offender with no
previous convictions. The Court noted
that the offence is serious and
prevalent in the Court’s jurisdiction. In applying the
Zinn
triad, the Court stated that it has to prevent the accused from
committing the same offence again and make other offenders think
before doing the same. A message should be sent to the public
that the type of conduct will not be tolerated by the sentence
that
the Court must impose. She noted “
through the sentence
I must also rehabilitate you today and
rehabilitation is
only effective for people serving a long-term imprisonment
.
”
[my emphasis]
[20]
The Court continued that it looks at the seriousness of the offence,
the interest of the community and his
personal circumstances. The
Court took into consideration that people worldwide are struggling to
find employment and that persons
without documentation are hired as
they are seen as “
cheap labour
”. The Court
highlighted the fact that the accused paid a bribe when entering
South Africa. She remarked that
“
if you were not
arrested on this day, you would have continued with your criminal
behaviour being illegally in this country.
”
[21]
The Court noted that he pleaded guilty and did not waste the Court’s
time. The Court then continued:
“
Now the sentence that
I must impose on you, Sir,
it must not be to break you
.
It must be to learn you a lesson for future. Now I look at the
different sentencing options available to me today.
I looked at
a fine but I do not deem it suitable. As you will, be paying
with the money that you earned illegally in this
country.
I
was looking at a wholly suspended sentence as well but it will be a
shockingly inappropriate sentence as it will now be sending
the wrong
message to the public
.
” [my emphasis] The
Magistrate sentenced the accused to two (2) years direct
imprisonment.
[22]
The approach of the Magistrate raises a number of concerns. She did
not mention the incidence of the offence
with reference to numbers.
She did not consider that there are officials at the border post
willing to be bribed and who facilitates
the commission of the crime.
There is nothing on the record that shows that he did not have
remorse, that he would not apply for
a passport or that a shorter or
suspended sentence would not send a signal to him and the community
that illegal activities will
not be tolerated. A submission by the
accused that the Court can decide what sentence to impose does not
give a Court
carte
blance
to impose the maximum sentence. The warnings in
S
v Scott-
Crossley
[13]
and
Mhlakaza
and another v S
[14]
in respect of the mistaken notion that long sentences rehabilitate
must be heeded.
S
v Khebe Matsoso – R26/2023 – A114/2023
[23]
He was convicted on 13 February 2023 and was sentenced to 18 months
imprisonment.
[24]
He is s a 20-year-old male person who was arrested at Ficksburg and
remained in custody since 18 December
2022. He elected to
represent himself and pleaded guilty.
[15]
He had no previous convictions. He is married and his wife is
unemployed. They have no children except for the child with whom
his
wife was pregnant when he was arrested.
[16]
[25]
He earned an income of about R150.00 per week by cleaning other
people’s properties. He crossed the
border to visit his
grandmother to report that his mother passed away.
[17]
This was not challenged.
[18]
[26]
Upon asked what type of sentence the Court should impose he answered,
“
I
do not know what kind of sentence that the Court would give me
here.
”
[19]
[27]
The prosecutor referred to the offence being very serious, that it is
prevalent in the area and that the
sentence should serve as a
personal deterrence for the accused as well as other offenders. The
prosecutor stated:
“
Your
Worship, while grief is indeed a sad thing. Your Worship but that
does not justify the accused person gratuitously breaking
our laws,
Your Worship. And his
impulsiveness
of age
,
Your Worship he should receive a sentence that would teach him for
future that he should not become
impulsive
”
[my emphasis]
[28]
The prosecutor argued for 4 month’s imprisonment.
[29]
The Court took note that he is a first offender with no previous
convictions,
the
seriousness and the prevalence of the offence, and that he should be
deterred from committing the same offence and has to atone
for his
wrongdoing.
[30]
She noted that he came to report to his grandmother that his mother
passed on, but could have picked-up a
telephone to phone his
grandmother. She did not consider a fine as he was unemployed, which
is, on the facts incorrect. In respect
of a suspended sentence she
merely notes: ”
With the influx of illegal immigrant case in
Ficksburg, I also deem a suspended sentence not an applicable
sentence.
”
S
v Tsele Pitsa – R19/2023 - A01/2023
[31]
The accused was convicted and sentenced to 18 months’
imprisonment on 8 February 2023.
[32]
He is a 41-year-old married male who looks after his two children, 11
and 5 years respectively. He is married
but his wife and he are not
living together. His wife is unemployed. He does odd jobs by
plastering and bricklaying and earns approximately
R150.00 per day if
there is work, which is approximately 3 – 4 months per year.
[33]
He had no prior convictions. He was arrested and remained in custody
since 11 January 2023. His passport
was suspended by the
Department of Home Affairs for a period of 5 years before, and at
date of his arrest one year of the suspended
period remained.
[34]
Upon asked what type of sentence the Court should impose he answered,
“
I just request the Court to sentence me, but not to be to
[sic] harsh”.
[35]
The prosecutor stated that the offence is serious and prevalent and
that the accused entered the country
gratuitously. Notwithstanding
not cross-examining the accused on his reasons for entering, the
prosecutor argued that the accused
did not take the Court into his
confidence. The prosecutor argued for six months imprisonment.
[36]
The Court repeated the prevalence, seriousness, overflowing court
rolls and deterrence as in all the other
cases. The Court stated that
the sentence must restore the public’s faith in the criminal
justice system and send a message
that such conduct will not be
tolerated.
[37]
She stated that he came to South Africa without any documentation.
This is incorrect as he had the suspended
passport with him.
[38]
The Court decided against a fine as the accused was not working and
could he not pay it. A wholly suspended
sentence would, according to
the Court, send the wrong message that people can break the law and
get a “
slap on the wrist
”.
State
v Boitumelo Makopoi: R17/2023 – A857/2022
[39]
She was convicted and sentenced to twelve (12) months’
imprisonment on 15 February 2023.
[40]
She is 40 years old, has three children, twins of 6 of years old and
one child of 4 years.
She is not married and not employed. She
earns approximately R140.00 to R250.00 per week by plaiting hair.
She was arrested
and kept in custody since 19 December 2022, She
pleaded guilty to the charge. She entered South Africa on 26 October
2022 and had
up to 26 November 2022 to return to Lesotho. On 26
November 2022 she was still looking after a person who was ill and
she
requested a person to bring her passport in order for her to
extend the days but was informed that she has to bring it herself and
produce the passport. She was arrested as she overstayed the
period for which she had authority.
[41]
No previous convictions were proven. When questioned what
sentence she wishes the Court
to impose, she answered: “
I
just request the Court to warn me, Your Worship.
” She
stated that she has elderly parents who are looking after her child
and that her mother is over 70 years and father
over 80 years old.
She was concerned about the person whom she was looking after.
[42]
The prosecutor argued that the offence is serious, prevalent in the
area and that the sentence
should not only serve as personal
deterrence, but also to would-be offenders. The prosecutor
argued for imprisonment of 3
months.
[43]
The Court noted that she is a first-offender. The Court stated
that the offence is serious,
prevalent and that the legislature
increased the sentencing jurisdiction to two (2) years direct
imprisonment. The criminal
courts in Ficksburg are flooded with
illegal immigrant cases and that there were five (5) such cases on
the roll that day.
The Court noted:
“
I
must rehabilitate you through the sentence that I must impose on
you.
And rehabilitation is
something that is best served for some person who is doing and
getting a direct imprisonment sentence
.
Through the sentence that I will impose on you, you must atone for
your wrongdoing. I must restore the public’s
faith in the
criminal justice system, and I will be doing that through my
sentence. Mam I will be [INAUDIBLE] suitable sentence
I will be
taking into account the seriousness of the offence, the interest of
the community as well as your personal circumstances.
”
[my emphasis]
[44]
Later, notwithstanding taking into consideration all the mitigating
factors, the Court stated
that it considered a wholly suspended
sentence but that it was not suitable.
State
v Nteboheng Thulo – R16/2023 - A09/2023
[45]
She was convicted and sentenced to eighteen (18) months’
imprisonment on 15 February 2023.
[46]
The accused was a 24-year-old female who was arrested near Ficksburg
on 12 January 2023. She
did not have a passport and came to South
Africa to seek employment. She did not have previous
convictions. In mitigation
she stated that she is not married
and has one child, 2 years old. She is not employed and is
assisted by her mother.
She came to South Africa to look for
work as her mother is ill and cannot continue to assist the family
financially. She
stated:
“
And I am also worried as to how they are surviving because
she can no longer work so I was coming to see if I could do anything
to assist.
”
[47]
Upon a question by the Court on what type of sentence should be
imposed, she begged for forgiveness.
The Court then stated that
forgiveness is not a sentence and enquired whether she wants direct
imprisonment, a suspended sentence,
a fine or a warning. She
asked for a suspended sentence.
[48]
The prosecutor argued that it was a serious offence, prevalent in the
area of jurisdiction and
that the sentence should not only serve as
personal deterrence, but also a deterrence to would-be offenders.
Illegal immigration
is not a victimless crime and poses a security
risk to South Africans. It was stated:
“…
the
dissatisfaction of the community which is automatically xenophobic
.
[INAUDIBLE], Your Worship, they are in danger, the actions of the
accused put those who are legally in the country, Your Worship
in
danger, as well as these things happen people are attacked
indiscriminately Your Worship.
”
[49]
Reference is made to competition for resources and employment
opportunities and that illegal
immigrants render themselves open to
exploitation. The sentence should vindicate the community's faith in
the justice system.
The prosecutor argued for 6 months’
imprisonment.
[50]
The Court, in sentencing, repeated the sentiments of the State.
It focused on deterrence
and atonement. It referred to rehabilitation
and took consideration of the difficulties South Africans have in
securing employment.
A suspended sentence would, according to
the Court, not be suitable as it sends a wrong message to the
public. A fine would
not be appropriate as she is unemployed.
State
v Matsheliso Mahakala: R22/2023 – A03/2023
[51]
She was convicted and sentenced to eighteen (18) months’
imprisonment on 15 February 2023.
[52]
She is 21 years old, has no children and is not married. Both
her parents are deceased
and she looks after her two (2) siblings.
She was arrested on 11 January 2023. She elected to represent
herself. She entered
South Africa to seek employment and did
not have a passport. The State proved no previous convictions.
She was not
employed but did plaiting hair. She earned approximately
R200.00 per week. Upon questioned what sentence she wishes the
Court
to impose, the accused asked for forgiveness or a fine of
R500.00.
[53]
The prosecutor stated that it is a serious offence, prevalent in the
area and the sentence should
serve as deterrence. He stated:
“
Your Worship, should reflect the communities [sic] of
horrors of this type offence
, Your Worship
”
and argued for six (6) months’ imprisonment.
[54]
The Court stated that the offence is serious and prevalent. The rolls
are flooded and overcrowded
with cases of this nature. The
sentence must teach the accused a lesson that she should not commit
the offence in future
again. A message must be sent to the
public that the offences will not be tolerated by Court. The
Court took note that
the community looks upon these cases where many
offences are committed in South Africa where people cannot be traced
as they are
undocumented. People are struggling to find
employment and illegal immigrants are seen as cheap labour. The
Court stated
that if she fines the accused, it will be sending a
wrong message to the public.
S
v Ntsane Kali – R19/2023 - A839/2022
:
[55]
The accused was convicted and sentenced to two (2) years’
imprisonment on 1 February 2023.
[56]
He is a 23-year-old male Lesotho national. His mother and
father passed on and he looked
after his three (3) siblings. He
is married and have one (1) child who is 5 years old. His wife
is presently unemployed.
He was arrested and kept in custody since 18
December 2022. He pleaded guilty to the charge. He entered
South Africa on 26
March 2022.
[57]
He was arrested as he was on his way back to Warden where he worked
for R1 500.00 per month.
He requested the Court to
sentence him to R800.00 fine.
[58]
The State did not prove any previous convictions. It argued
that it was a serious offence,
prevalent in the area and having a
look at the length of time that the accused was in South Africa
without a passport or permission,
it should be taken into
consideration as an aggravating factor. The Court should impose
an imprisonment of nine (9) months.
[59]
The Court took note that he was a first offender and pleaded guilty.
The offence is serious,
prevalent and causes full Court rolls.
The offence is so serious that the legislature increased the
sentencing to two (2)
years. The Court stated that the sentence
should deter him from not committing the same offence in future and
restore the
public’s faith in the criminal justice system.
The sentence should also rehabilitate the accused. In referring
to rehabilitation the Court stated: “
Now rehabilitation is
seen as only being effective for people that serve a sentence in
custody.
”
[60]
The Court took into consideration the fact that citizens are also
seeking employment and that
immigrants are seen as cheap labour.
Many offences are committed where people cannot be traced as they are
undocumented.
The Court took into consideration the period in
custody and the long period that the accused has been in South
Africa. A
fine would be inappropriate as he would be using the
money that he earned in South Africa to pay for it. A suspended
sentence
would send the wrong message to the public. The Court
sentenced the accused to two (2) years imprisonment. The sentence
does
not reflect the consideration of the period spent awaiting
trial.
State
v Tanki Mokwatsi
:
R12/2023
– A05/2023
[61]
He was convicted and the court sentenced him to eighteen (18) months’
imprisonment on 13
February 2023.
[62]
He is 30-year-old and was arrested and kept in custody since 11
January 2023. He pleaded
guilty. He heard about
employment opportunities in Bethlehem. He is married and has one
child, 14 years old. His spouse
is deceased and he was not
employed. He previously sold food in Lesotho. He used to
earn between R250.00 and R300.00
per day.
[63]
He asked for a lenient sentence. He testified that his spouse
passed away on 3 September
2022 and was buried on 9 September 2022.
The monies that he had was used for her funeral and they could no
longer survive.
[64]
The State proved no previous convictions and argued that the offence
is serious, prevalent and
that the accused was actually engaged in
lucrative business activities in Lesotho. There was no reason for him
to commit the crime
in coming to South Africa. It argued for
five (5) months’ imprisonment.
[65]
The Court took into consideration that he pleaded guilty and that the
offence is serious and
prevalent. The Courts are flooded with
cases of this nature. The legislature increased the sentencing
to show how serious
the offence is. The sentence should deter
him from committing the same offence in future and must gain the
public’s
faith in the criminal justice system. The Court
took his personal circumstances as well as that many South Africans
are seeking
employment but cannot secure same into consideration.
Illegal foreigners is seen as cheap labour.
[66]
There was no reason for him to come to South Africa without
documentation as he had a lucrative
business. The Court took into
consideration the period he was in custody. A suspended
sentence would send the wrong message
to the public as “
a
slap on the wrist”
.
VII
THE RESPECTIVE TERMS OF IMPRISONMENT
[67]
The cases show that the Magistrate consistently elected to sentence
the accused to terms between
12 months (one accused), 18 months (5
accused) and two years (2 accused).
[68]
In all the cases, the State asked for lesser sentences. It needs to
be borne in mind that the
prosecutor was, on probabilities, well
aware of the prevalence of the crime, the society’s demands for
justice and the applicability
of the
Zinn
triad. It can be
accepted that this informed the prosecutor’s argument on
sentencing.
[69]
The accused were in all the cases first offenders and all pleaded
guilty. In all the cases, the
magistrate took meticulous note of
their personal circumstances. She also, in virtually every case,
noted the same aggravating
factors.
[70]
Bearing the caution in
S
v Dodo
and
Mhlakaza
and another v S
supra
in
mind, it does not appear that individualisation of sentencing was
applied. The State consistently argued for lesser sentences.
[71]
In
Keva
v S
[20]
the
Court held:
“
[43]
In S v Rabie
[21]
,
the
philosophies and principles applicable in an appeal against sentence
were set out by Holmes JA, namely, that in every appeal
against
sentence, whether imposed by a magistrate or a judge, the court
hearing the appeal should be guided by the principle that
punishment
is pre-eminently a matter for the discretion of the trial court and
should be careful not to erode such discretion.
Hence the
further principle that the sentence should only be altered if the
discretion has not been ‘judicially and properly
exercised’.
In S
v Anderson
[22]
,
in
dealing with the applicable legal principles to guide the court when
requested to amend a sentence imposed by a trial court,
Rumpff JA,
affirmed as follows:
‘
These
include the following: the sentence will not be altered unless it is
held that no reasonable man ought to have imposed such
a sentence, or
that the sentence is out of all proportion to the gravity or
magnitude of the offence, or that the sentence induces
a sense of
shock or outrage, or that the sentence is grossly excessive or
inadequate,
or
that there was an improper exercise of his discretion by the trial
Judge, or that the interest of justice requires it’
[44]
Moreover, as held in Malgas
[23]
, a
court of appeal is enjoined to consider all other circumstances
bearing down on this question, to enable it to properly
assess the
trial court’s finding and to determine the proportionality of
the sentences imposed upon the offender.
[45]
The constitutional court
[24]
,
has
described an appeal court’s discretion to interfere with a
sentence only: when there has been an irregularity that
results
in a failure of justice: or when the court a
quo
misdirected
itself to such an extent that its decision on sentencing is
vitiated: or when the sentence is so disproportionate
or
shocking that no reasonable court could have imposed it.”
[72]
Terblanche
supra
states:
“
In S
v Scheepers
[25]
Viljoen
JA expressed the personal opinion that imprisonment is justified only
if the offender needs to be removed from society
in order to protect
society and if the purposes of punishment cannot be achieved through
any other punishment. In addition, the
court declared that if the
same objects of punishment can be achieved through an alternative
sentence, that alternative sentence
should be preferred.
[26]
[73]
In my view, the sentences imposed do not show sufficient reasoning by
the magistrate
.
There
is no proportionality between the periods spent in South Africa and
the term of imprisonment. The record is silent on the
statistics of
the offence. This culminates in a sense of shock and an appreciation
that the sentences are grossly excessive and
that there was an
improper exercise of discretion by the court.
[74]
In my view the interests of justice require interference in the
sentences.
VIII
CONCLUSION AND ORDERS
[75]
Bearing the respective accused person’s circumstances, the
nature of their offences, the
time spent in awaiting trial, and the
demands of society in mind, the following sentences would do justice
to the accused. All
sentences be antedated from date of imposition.
The sentences of four months are not suspended as they would have
been served by
the time of this judgment. Those exceeding 4 months
are not suspended due to the circumstances of the offences.
S
v Tebelo Mangoejane
[76]
He is 22-years-old, unmarried and has no children. He was employed in
the construction industry
since August 2022 and earned R1 000.00
per month. He paid a bribe to enter South Africa.
[77]
The sentence is amended to 1 year’s imprisonment.
S
v Khebe Matsoso
[78]
He is s a 20-year-old male person who was in custody since 18
December 2022. He is married and
his wife is unemployed. They had no
children except for the child which she was pregnant at date of his
arrest. He crossed the
border to visit his grandmother to report that
his mother passed away.
[79]
The sentence is amended to 4 months’ imprisonment.
S
v Tsele Pitsa
[80]
He is a 41-year-old and looked after his two children, 11 and 5 years
respectively. He is married
but his wife and he are not living
together. His wife is unemployed. His passport was suspended by the
Department of Home Affairs
for a period of 5 years and at date of his
arrest.
[81]
It is not his first brush with immigration and the sentence is
amended to 8 months’ imprisonment.
State
v Boitumelo Makopoi
[82]
She is 40-year-old, has three children (twins 6 years old and one 4
years old). She was
arrested and kept in custody since 19
December 2022. She requested a person to bring her passport in order
for her to extend her
visit.
[83]
She tried to comply with the immigration laws and her sentence is
amended to 2 months’
imprisonment.
State
v Nteboheng Thulo
[84]
She is 23-year-old, not married and has one child, 2 years old.
She is not employed and
is assisted by her mother. She came to
South Africa to seek employment.
[85]
The sentence is amended to 4 months’ imprisonment.
State
v Matsheliso Mahakala
[86]
She is 21-year-old, have no children and is not married. Both
her parents are deceased
but has two (2) siblings. She looks
after her siblings.
[87]
The sentence is amended to 4 months’ imprisonment.
S
v Ntsane Kali
[88]
He is a 23-year-old male. His mother and father passed on and
he looked after his three
(3) siblings. He is married and have
one (1) child who is 5 years old. His wife is unemployed.
[89]
The sentence is amended to 4 months’ imprisonment.
State
v Tanki Mokwatsi
[90]
The accused is a 30-year-old. He is married and has one child, 14
years old. His spouse
passed away on 3 September 2022 and
buried on 9 September 2022. The monies that he had he used for
her funeral and therefore
could no longer survive.
[91]
The sentence is amended to 4 months’ imprisonment.
P
R CRONJé, AJ
I
agree
M
OPPERMAN, J
[1]
She
was appointed on 1 February 2020 to the rank of Magistrate.
[2]
Terblanche,
S S,
Guide
to Sentencing in South Africa
,
2016,
Third
Edition, LexisNexis, para 3.1.
[3]
S
v Zinn
1969 (2) SA 537 (A).
[4]
Terblanche
supra.
[5]
(CCT
1/01)
[2001] ZACC 16
;
2001 (3) SA 382
(CC);
2001 (5) BCLR 423
(CC)
(5 April 2001).
[6]
[2001]
JOL 7691 (Tk).
[7]
(677/06)
[2007] ZASCA 127
;
2008 (1) SA 404
(SCA);
2008 (1) SACR 223
(SCA) (28
September 2007).
[8]
[1997]
2 All SA 185 (A).
[9]
2017
(2) SACR 546
(WCC)
at
paragraph [8].
[10]
(429/2022)
[2023] ZASCA 3 (23 January 2023). See also:
Lesoetsa
v S
(A69/2022) [2023] ZAFSHC 37 (16 February 2023).
[11]
(CA&R
04/2021) [2021] ZAECGHC 5 (12 January 2021).
[12]
(CCT
115/21)
[2021] ZACC 50
;
2022 (4) BCLR 387
(CC);
2022 (2) SA 321
(CC)
(30 December 2021).
[13]
S
upra.
[14]
S
upra.
[15]
Transcript,
p. 1.
[16]
Transcript,
p. 5.
[17]
Transcript,
p. 3.
[18]
Transcript,
p. 6.
[19]
Transcript,
p. 6.
[20]
(A103/2021)
[2021] ZAWCHC 217
(29 October 2021).
[21]
S
v Rabie
1975(4)
855 (AD) at 862 G. See also
S
v PB
[21]:
“…
it
remains an established principle of our criminal law that sentencing
discretion lies pre-eminently with the sentencing court
and must be
exercised judiciously and in line with established and valid
principles governing sentencing”.
[22]
1964
(3) SA 494
(AD)
at 495 D-H.
[23]
S
v Malgas
2001
(1) SACR 469 (SCA).
[24]
S
v Boggards
2013
(1) SACR (CC) at [4].
[25]
1977 (2) SA 155
(A)
at 159A-D.
[26]
This
first principle was rejected in
S
v Holder
1979 (2) SA 70
(A)
at 77H-78A, but the latter approach was endorsed, as long as no
factor would be over- or underemphasised in the process
(at 74H).