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[2015] ZAFSHC 39
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S v Modumela and Others (07/2015) [2015] ZAFSHC 39 (5 March 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Review No. : 07/2015
DATE: 05 MARCH 2015
In the case between:
THE STATE
And
TSHEPO MODUMELA AND 5 OTHERS
CORAM: RAMPAI, J et HINXA, AJ
JUDGMENT: HINXA, AJ
DELIVERED ON: 5 MARCH 2015
[1] This matter served before me as a
special review in terms of
section 304(4)
of the
Criminal Procedure
Act 51 of 1977
.
[2] The six accused were charged with
contravention of section 42(1)(a) of the Immigration Act 13 of 2002
(entering and residing
in the Republic of South Africa without a
valid passport or permit). They all pleaded guilty and were duly
convicted by the court
a quo on 11 December 2014. Each was thereupon
sentenced to pay a fine of R3 000,00 or to undergo six months
imprisonment in default
of payment of a fine. According to their
review forms did not afford to pay and were presumably serving the
prison term on 19
January 2015 when the matter was sent on special
review.
[3] The trial magistrate deemed it
prudent to refer the matter to the High Court as special review with
the request that the sentence
be set aside. In the covering letter
in this regard the learned magistrate remarked as follows:
“… The court acted in
terms of section 112(1)(a) of Act 51 of 1977 and when imposing
sentence exceeded the imprisonment
term jurisdiction by imposing six
months instead of three months. The monetary jurisdiction is in
order though.
I therefore humbly request the
Honourable Reviewing Judge to amend the term of imprisonment
accordingly to be in line with the provisions
of section 112(1)(a),
Act 51 of 1977.
I would also like to apologise for the
late sending of the case for review as by the 31/12/2014 it was not
back from the transcribers
and I was on leave from the 2/1/2015 to
the 16/1/2015. It was handed to me on my arrival on the 19/1/2015.”
(my underlining for emphasis)
[4] At the outset it must be pointed
out that the reasoning of the learned magistrate (as depicted by my
underlining above) that
section 112(1)(a) of Act 51 of 1977 (“section
112(1)(a)”) imposes a limitation of three (3) months
imprisonment is
not sustainable. Such contention cannot be
entertained by placing any reliance on section 112(1)(a) since this
section is virtually
silent on the alternative imprisonment term
(hereinafter referred to as “alternative”).
[5] For the sake of clarity and ease of
reference I herewith recite the aforesaid section. It reads as
follows:
“(1) Where an accused at a
summary trial in any court pleads guilty to the offence charged, or
to an offence of which he may
be convicted on the charge and the
prosecutor accepts that plea—
(a) the presiding judge, regional
magistrate or magistrate may, if he or she 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 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 or
she has pleaded guilty
on his or her plea of guilty only and—
(i) impose any competent sentence, other than imprisonment or any
other form of detention
without the option of a fine 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;”
[6] At this juncture I pause to stress
that if any interference with the alternatively meted out herein were
to be warranted, justification
thereof would be premised on the
Adjustment of Fines Act 101 of 1991. Section 1 thereof clearly
stipulates that for every R60 000,00,
an alternative imprisonment
term should be 36 months. At the risk of stating the obvious, for R5
000,00 fine, the alternative
would be three (3) months as envisaged
by the learned magistrate in casu.
[7] I do not deem it prudent to follow
that route neither under the particular circumstances of this case.
In her address the magistrate
comprehensively and cogently alluded to
the adversity currently afflicting her area of jurisdiction
consequent upon illegal immigration.
A healthy balance was, in my
view, judiciously heeded between all the relevant factors i.e. the
crime, the criminal and the interests
of the society.
[8] It is trite exposition of our law
that sentencing must be individualised and thus each case must be
adjudicated on its own merits.
It is equally trite principle of our
law that sentencing regime resorts exclusively within the purview of
the trial magistrate
domain subject to judiciously exercise of such
discretion. In casu it is common cause that the trial magistrate in
judicious exercise
of sentencing discretion vesting in her, deemed
the alternative of six months appropriate. It was only after he had
bethought herself
that she laboured under the misconception that she
had exceeded the jurisdictional limitation ordained by section 112
(1)(a).
I hasten to add that the alternative is, furthermore,
neither shockingly, startlingly; nor disturbingly disproportionate to
the
fine to warrant intervention.
That concludes the rationale behind
which this matter was sent on special review.
[9] At this stage I see it timely to
turn my attention to three other contentious issues with which this
matter is fraught. I proceed
to hereunder deal with them one by one.
[10] All the accused were legally
represented throughout the trial. Having tendered pleas of guilty,
it was incumbent upon the
learned magistrate to solicit confirmation
from the legal representative. For inapprehensible reason’s
this was omitted
by the magistrate on one hand. On the other,
equally for inexplicable reason’s, the legal representative did
not consider
it apposite to mero motu discharge his responsibility.
For the sake of emphasis, it admits of mentioning that it is not open
to
doubt that the legal representatives are sometimes taken by
surprise by their clients at plea stages.
I cannot but only optimistically
speculate that in casu no such surprises unfolded and the attorney’s
passiveness implied
acquiescence in line with the well-known
expression, “silence means consent”. Having said that,
it remains to be said
that it is undesirable that this aspect of the
procedural law should be left to speculation, no matter how plausible
and realistic
the aforesaid speculation might be.
[11] I come next to the second issue
that engendered my disquiet in this matter. In his address on
sentence the prosecutor vigorously
argued for a very harsh sentence
notwithstanding the reality that he had accepted a section 112(1)(a)
plea route. Whilst on this
point, it is apt to make reference to S v
Onesmus; S v Amukoto; S v Mweshipange
2011 (2) NR 461
(HC). At par
[17] Liebenberg J dealt with a remarkably similar conduct of a
prosecutor in the following terms:
“What I find most surprising and
conflicting is that although the prosecutor held the view that these
cases could be finalised
in terms of section 112(1)(a) –
thereby implying that they was minor offences – he, when
addressing the court on sentence,
submitted that the offences were of
serious nature. What boggles the mind is, how can the same offence
at the stage of pleading
be considered to fall in the category of
crimes classified as “minor offences”, but when it comes
to sentence, the
same offence (on the very same facts), is elevated
to a “serious crime”? Prosecutors are reminded that they
are officers
of the court; and as such under a duty to serve the
interests of justice. Had the prosecutor representing the State in
these cases
been serious, then he would not have intimated to the
court to invoke the provisions of section 112(1)(a); but instead,
would have
insisted that section 112 (1)(b) be applied, where the
court was obliged to do so in terms of the Act …”
[12] I find the above alluded to dictum
not only apposite but also instructive in the situation obtaining in
casu. That is all
the more so when the prosecutor does not only
argue for a harsher sentence but for imprisonment without an option
of a fine like
in this matter.
[13] Steyn in his legal writing,
“Questioning: The Undefended Accused – Practical Examples
for Magistrates (2011) at
27” echoes sentiments similar to
those of Liebenberg J in Onepmus case supra. He points out that the
integrity of the public
prosecutor is very crucial in the application
of section 112(1)(a). This sentiment has much to commend itself in my
view.
[14] I proceed to deal last with an
irregularity which is interrelated with the aforesaid two already
disposed of. After the prosecutor
had addressed on sentence, the
learned magistrate, once more, failed to invite the attorney to
respond if he deemed necessary.
I must hasten to point out that such
an invitation was peremptory not only as a legal principle but also
in view of the forceful
submission for an imprisonment advanced by
the prosecutor. I cannot but feel that it is unthinkable that the
attorney would have,
if called upon, shunned responding. I premise
my view on two grounds: First, the attorney would never concur with
the submission
for imprisonment term by the prosecutor which sought
to thwart, in a substantial measure, his plea for mercy in mitigation
of sentence.
Second, it would not take too argumentative an attorney
to remind the court that a term of imprisonment without the option of
a fine in casu would be a contravention of the very section 112(1)(a)
upon which the entire proceedings were sustainable.
[15] In concluding on the highlighted
irregularities, I am of the persuasion that they are not of such
gravity as to vitiate the
proceedings. In my view, no prejudice has
been suffered by any one, administration of justice included, for the
hereunder reasons:
15.1 Ad first irregularity: Had the
instructions of the accused to the attorney been to plead not guilty,
it would not take any
effort for the attorney to mero motu stand up
and address the court accordingly;
15.2 Ad second irregularity: The court
did not heed the call by the prosecutor for custodial punishment. On
the contrary, it limited
itself exclusively within the confines of
section 112(1)(a). It bears emphasis that the court did not even
impose the maximum
fine of R5 000,00 permissible pursuant to a
section 112(1)(a) conviction.
15.3 Ad third irregularity: The
sentiments expressed at paragraph 15.2 supra are directly in point on
this aspect as well. I need
to say no more.
[16] In the circumstances, I make the
following order:
“The conviction and sentence are
confirmed.”
M. D. HINXA, AJ
I agree.
M. H. RAMPAI, J