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[2016] ZAGPPHC 387
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S v Madocha (A335/16) [2016] ZAGPPHC 387 (24 May 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
PROVINCIAL DIVISION, PRETORIA)
CASE
NO: A335/16
High
Court ref. no. 76/2016
Magistrate
case no: D05/16
In
the matter between:
THE
STATE
And
TAEMBEDZWA
MADOCHA
REVIEW
JUDGMENT
MAKGOKA.
J:
[1]
This matter was laid before this court
on special review at the instance of the acting head of court,
Daveyton. The accused pleaded
guilty to, and was convicted of, being
an illegal foreigner in the Republic. He was charged under the
provisions of section 45
(1)(a) read with section 1,10, 25, 25, 26,
27 and 49 of the Immigration Act number 13 of 2002, as amended by the
Immigration Amended
Act 19 of 2004 further read with s1 (1)(a) of the
Adjustment of Fines Act 101 of 1991. He was sentenced to six months
direct imprisonment.
[2]
The acting head of court, Daveyton
queries the sentence on the basis that it exceeds the sentence
prescribed by s 45(1 )(a) of the
Immigration Act 19 of 2004, which,
according to him, provides for a fine or imprisonment not exceeding
three months, upon conviction.
Two aspects arise from the query by
the Head of Court, which seem to have eluded him. First, the accused
was incorrectly charged
and convicted of contravening s 45(1 )(a).
That section does not create an offence. Section 49(1 )(a) does. The
charge as framed
is in line with the provisions of s 49(1 )(a) which
provides that anyone who enters or remains in, or departs from, the
Republic
in contravention of the Act, shall be guilty of an offence.
[3]
The second aspect which the acting head
of court seems not to be aware of, is the maximum period of
imprisonment for contravention
of s 49(1 )(a). Initially, that period
was three months’ imprisonment. That period was replaced with a
maximum of two years’
imprisonment by s 24 of the Immigration
Amendment Act 13 of 2011, which commenced on 26 May 2014. In
principle therefore, the acting
magistrate who imposed the sentence
of six months’ imprisonment was entitled to impose such a
sentence. The sentence was
therefore a competent one. It is very
peculiar that the fact that the accused was charged under a wrong
section, or that the charge
sheet incorrectly referred to a wrong
penalty provision, seem to have eluded all - the acting magistrate,
the prosecutor, the defence,
and the acting head of court.
[4]
In their helpful comments, Adv. GJC
Maritz
and HM
Meintjies
SC
of the office of the Director
of Public Prosecutions, point out, however, that due to the fact that
the accused was not properly
appraised of the correct legal position
at any stage of the proceedings, he may have been influenced to plead
guilty given the
maximum term of 3 months’ imprisonment. For
this reason, the Deputy Director of Public Prosecutions is of the
view that the
issue of prejudice arises, and suggests that the
sentence be interfered with and reduced to three months’
imprisonment. I
agree. In light of these, it is necessary to amend
the charge sheet in terms of
s 304
(2)(c)(iv) of the
Criminal
Procedure Act 51 of 1977
. The only possible prejudice to the accused
is tempered by the order we intend to make in reducing the sentence
to 3 months’
imprisonment.
[5]
In the result the following order is
made:
1.
The charge sheet is amended to read as
follows:
That
the accused, is guilty of contravening
Section 49(1
)(a) read with
sections 1
,
10
,
25
,
26
,
27
and
49
of the
Immigration Act no 13 of
2002
, as amended by
Immigration Amendment Act 19 of 2004
further read
with
S1
(1 )(a) of the Adjustment of Fines Act 101 of 1991.
In
that upon or about 01 January 2016 and at or near Daveyton in the
district of Ekurhuleni South East, the accused entered or remained
in
the Republic of South Africa without possessing the required or valid
documents to do, thereby committing an offence.’
2.
The sentence imposed by the magistrate
Court is set aside and in its stead the following is substituted:
The
accused is sentenced to 3 months’ imprisonment.’
T.M.
MAKGOKA
JUDGE
OF THE HIGH COURT
I
agree
S.S.MPHAHLELE
JUDGE
OF THE HIGH COURT