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
>>
2018
>>
[2018] ZAFSHC 215
|
|
S v Sithole (R349/2018) [2018] ZAFSHC 215 (24 December 2018)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Review
No.: R349/2018
In
the review of:-
THE
STATE
and
JAMES
ISAAC
SITHOLE
CORAM:
MUSI, AJP
JUDGMENT
BY:
MUSI, AJP
DELIVERED
ON:
24 December 2018
[1]
This matter was sent on special review by the control magistrate,
Bloemfontein.
[2]
The accused, a Mozambican, was charged with contravening section
49(1)(a) of Act 13 of 2002 – entering or remaining in
the
Republic of South Africa without valid documents.
[3]
He was properly convicted in terms of section 112(1)(a) of the
Criminal Procedure Act, 51 of 1997
[1]
.
[4]
During his address in mitigation of sentence he intimated that his
papers are at Maputo. The control magistrate was of
the view
that the magistrate was supposed to enter in a plea of not guilty in
terms of section 113 of the Act.
[2]
[5]
The charge is that the entered and remained in South Africa without
documentation. The fact that his papers are in Maputo
is not a
defence. He was not supposed to enter this country without
documentation.
[6]
The magistrate was informed by the prosecutor that the accused
“indicated that the wants to speak on his own behalf and
finalize the matter”. The magistrate confirmed this with
the accused. He said: “You have a right to legal
representation, but I understand that you are going to speak for
yourself?” The accused confirmed that he would conduct
his own defence.
[7]
The magistrate could have elaborated on the right to legal
representation. The fact that he did not does not mean that
the
proceedings are
ipso facto
not in accordance with justice. The fact of the matter is that
the accused indicated that he would conduct his own defence.
He
was told that he has a right to legal representation.
[8]
Section 35(3)(g) of the Constitution 1996 reads as follows:
“
Every
accused person has a right to a fair trial, which includes the right
to have a legal practitioner assigned to the accused
person by the
state and at state expense, if substantial injustice would otherwise
result, and to be informed of this right promptly”
[9]
If one has regard to the charge, the potential sentence and the
actual sentence imposed, the magistrate was correct to proceed
with
the matter. When the accused pleaded the magistrate was already
informed by the prosecutor that the State requests that
the matter be
finalised in terms of section 112(1)(a). Clearly no substantial
injustice would arise when a fine is imposed.
The accused was
not exposed to imprisonment without the option of a fine.
[10]
The magistrate said the following when sentencing the accused:
“
You
are sentenced to R500 or 25 days’ imprisonment for a period of
4 years on condition that you are not convicted of the
same offence
during the period of suspension.”
[11]
The sentence ought to be amended for the sake of clarity and
certainty.
[12] I therefore make the
following order.
1. The conviction is
confirmed.
2. The
sentence is amended to read as follows:
R500
or 25 days’ imprisonment which is suspended for 4 years on
condition that the accused is not convicted of contravening
section
49(1)(a) of Act 13 of 2002 committed during the period of suspension.
____________
C.
J. MUSI, J
[1]
Section
112(1)(a) reads as follows:
“
The
presiding judge may, if he is of the opinion that the offence does
not merit the sentence of death, or the presiding judge,
regional
magistrate or magistrate may, if he is of the opinion that the
offence does not merit punishment of imprisonment or
any other form
of detention without the option of a fine or of a whipping or of a
fine exceeding the amount determined by the
Minister from time to
time by notice in the
Gazette
,
convict the accused in respect of the offence to which he has
pleaded guilty on his plea of guilty only and-
(i)
impose any competent sentence, other than the sentence of death or
imprisonment or any other form of detention without the
option of a
fine or a whipping or a fine exceeding the amount determined by the
Minister from time to time by notice in the
Gazette
;
or
(ii)
deal with the accused otherwise in accordance with law;”
[2]
Section
113 reads as follows:
“
(1)
If the court at any stage of the proceedings under section 112 (1)
(a)
or
(b)
or
112 (2) and before sentence is passed is in doubt whether the
accused is in law guilty of the offence to which he or she has
pleaded guilty or if it is alleged or appears to the court that the
accused does not admit an allegation in the charge or that
the
accused has incorrectly admitted any such allegation or that the
accused has a valid defence to the charge or if the court
is of the
opinion for any other reason that the accused's plea of guilty
should not stand, the court shall record a plea of not
guilty and
require the prosecutor to proceed with the prosecution: Provided
that any allegation, other than an allegation referred
to above,
admitted by the accused up to the stage at which the court records a
plea of not guilty, shall stand as proof in any
court of such
allegation.
(2) If the court records
a plea of not guilty under subsection (1) before any evidence has
been led, the prosecution shall proceed
on the original charge laid
against the accused, unless the prosecutor explicitly indicates
otherwise.”