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[2015] ZAGPPHC 131
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S v Ubisi and Another (A175/15) [2015] ZAGPPHC 131 (13 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NO: 51/15
CASE NUMBER:
A175/15
DATE: 13 MARCH
2015
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
In the matter
between:
THE STATE
and
NELSON
UBISI
.................................................................................................
First
Accused
JAMES
SITHOLE
.........................................................................................
Second
Accused
JUDGMENT
Tuchten
J
:
1. This case came
before me on special review. The two accused, both Mozambican
nationals, were charged in a magistrate’s
court with the
offence of entering or remaining in the Republic in contravention of
s 49(1)(a)
of the
Immigration Act, 13 of 2002
.
2. Both accused, who
were legally represented, pleaded guilty and the court dealt with the
accused under
s 112(1)(a)
of the
Criminal Procedure Act, 51 of 1977
.
3. On 22 January
2015, the magistrate convicted the accused on their pleas and
sentenced them each to imprisonment for 90 days and
directed that
they be deported to their country of origin after they had served
their sentences.
4. The difficulty
with this sentence is that
s 112(1)(a)
does not permit a sentence of
imprisonment or any other form of detention without the option of a
fine. The magistrate realised
on the same day that she had made a
mistake and took steps to have the matter sent on special review. The
DPP has kindly considered
the matter and agrees that a mistake has
been made.
5. The sentence of
imprisonment clearly cannot stand. Unfortunately no investigation was
undertaken into the ability of the accused
to pay a fine. Justice
requires that the accused should not be brought back to court to be
re-sentenced. I have decided that the
only appropriate competent
sentence in these circumstances is a discharge with a reprimand under
s 297(1
)(c) of the
Criminal Procedure Act. An
order for deportation
as such is justified under
s 34(6)
of the
Immigration Act, which
reads:
Any illegal
foreigner convicted and sentenced under this Act may be deported
before the expiration of his or her sentence and his
or her
imprisonment shall terminate at that time.
6.
The order made by the magistrate, that the accused should be deported
after
they
had served their sentences must be altered because the custodial
sentences were not competent.
7. I make the
following order:
1. The convictions
of the ac
cused are confirmed as being in
accordance with justice.
2.
The sentences imposed upon the accused are set aside and the
following are substituted:
The accused are both
cautioned and reprimanded.
Under
s 34(6)
of the
Immigration Act, 13 of 2002
, it is directed that the accused must
forthwith be deported to their country of origin and the clerk of the
court is directed forthwith
to submit this direction and such other
documents as may be appropriate to the immigration officer at the
Department of Home Affairs,
Springs to give effect to this direction.
NB Tuchten
Judge of the High
Court
10 March 2015
I agree
M
Ismail
Judge
of t
he
High
Court
10
March 2015