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[2015] ZAFSHC 114
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S v Banda (90/2015) [2015] ZAFSHC 114 (4 June 2015)
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FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF
SOUTH AFRICA
Review
No. : 90/2015
In
the appeal between:-
THE
STATE
and
ALLAN
BANDA
CORAM:
DAFFUE,
J
et
NAIDOO,
J
JUDGMENT
BY:
DAFFUE,
J
DELIVERED
ON:
4 JUNE
2015
[1]
This matter was referred by the senior magistrate of Welkom, Mr S F
Ferreira, to the High Court as a special review in terms
of s 304(4)
of the Criminal Procedure Act, 51 of 1977 (‘the CPA”).
This sub-section applies where the accused
was legally represented,
but the proceedings were not in accordance with justice
[2]
The accused, Allan Banda, a […..] year old Zimbawean [….]
citizen was arraigned in the Welkom magistrates’
court on a
count of contravening of s 49(1)(a) of the Immigration Act, 13 of
2000, read with sections 1, 10, 25 and 26 of that
Act, in that upon
or about 26 April 2015 and at Welkom the accused found himself in the
Republic of South Africa without a valid
passport and permit.
On 14 May 2015 he was convicted and sentenced to 30 (thirty) days’
imprisonment.
[3]
The accused was represented by an attorney of the Legal Aid Board at
the trial. He pleaded guilty and was convicted accordingly
by
the presiding magistrate in accordance with the provisions of s
112(1)(a) of the CPA. In addressing the court on sentence
both
his legal representative as well as the prosecutor requested the
court to impose a sentence of “
imprisonment
coupled with a fine
”
.
The word “
coupled
”
is
indicative thereof that imprisonment together with a fine was
requested, unless the proficiency in English of the two legal
representatives is not up to standard and they really wanted the
court to impose imprisonment with the option of a fine. It
is
uncertain how the presiding magistrate interpreted these
submissions. When one reads the judgment on sentence and
especially
the second last paragraph thereof, the impression is
created that the presiding magistrate was of the view that both legal
representatives
requested him to impose a sentence providing for the
option to pay a fine. I quote the paragraph
verbatim
:
“
Right.
I’m not going to give you a sentence that consists of a fine
with the opinion of – imprisonment with the option
of a fine,
because those sentences are not effective in deterring these type of
offences. I’m going to give you a short
term of
imprisonment that will allow the authorities in the meantime to get
your paperwork ready so you can be deported back to
your country or
origin.”
[4]
Section 49 of the Immigration Act, as amended by s 20 of the
Immigration Amendment Act, 13 of 2011 reads as follows:
“
49(1)(a)
Anyone who enters or remains in, or departs from the Republic in
contravention of this Act, shall be guilty of an
offence and liable
on conviction to a fine or to imprisonment not exceeding two years.”
[5]
The presiding magistrate did not consider the provisions of s
112(1)(a) of the CPA at all when sentence was imposed.
Regrettably, the two legal representatives failed to make submissions
in this regard. Although the magistrate would be entitled
in
appropriate circumstances to impose direct imprisonment without the
option of a fine in accordance with the provisions of s
49 of the
Immigration Act, the provisions of s 112(1)(a) of the CPA had to be
followed
in
casu
,
but were disregarded
in
toto
.
This is a pity. Presiding officers in our magistrates’
courts deal with the provisions of s 112 on a daily basis
and are
presumed to be familiar therewith.
[6]
It is perhaps convenient to quote s 112(1)(a) and (b) fully in order
to distinguish between the two sub-sections. Section
112(1)
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 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 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; [Para. (a) substituted by s. 4 (a) of Act 109
of 1984, by s. 7 (a)
of Act 5 of 1991 and by s. 2 of Act 33 of 1997.]
(b)
the
presiding
judge, regional magistrate or magistrate
shall
,
if he or she is of the opinion that the
offence
merits punishment of imprisonment
or any other form of
detention
without the option of a fine or of a fine exceeding the amount
determined by the Minister
from time to time by notice in the Gazette, or if requested thereto
by the prosecutor,
question
the accused
with reference to the alleged facts of the case in order
to
ascertain whether he or she admits the allegations
in the charge to which he or she has pleaded guilty,
and
may
,
if
satisfied that the accused is guilty
of the offence to which he or she has pleaded guilty,
convict
the accused on his or her plea of guilty of that offence
and
impose any competent sentence
.”
(emphasis
added.)
[7]
The difference between sub-section 112(1)(a) and sub-section
112(1)(b) is evident and should be known to each and every person
appointed to the bench, whether as a judge, regional court magistrate
or a magistrate. If an accused pleads guilty and his
plea is
accepted by the prosecutor, the presiding officer 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 a fine exceeding the amount determined by the Minister
from
time to time (at present R5 000,00) convict the accused in
respect of the offence and impose any competent sentence other
than
imprisonment or any form of detention without the option of a fine or
a fine in excess of R5 000,00.
[8]
If the presiding officer is of the opinion that the offence merits
punishment of imprisonment or any other form of detention
without the
option of a fine or a fine in excess of R5 000,00, or if the
prosecutor requests him to do so, he shall question
the accused with
reference to the alleged facts of the case in order to ascertain
whether the accused admits the allegations and
charge to which he has
pleaded guilty and may, if satisfied that the accused is guilty of
the offence to which he has pleaded guilty,
convict him on his plea
of guilty and impose any competent sentence.
[9]
In
casu
the prosecutor accepted the plea of guilty and did not ask the
presiding magistrate to question the accused in terms of the
provisions
of s 112(1)(b). The presiding magistrate also failed
to conduct such questioning. The matter clearly fell within the
ambit of s 112(1)(a), the necessary consequence being that
imprisonment or any form of detention without the option of a fine
could not have been imposed.
[11]
The accused was sentenced on 14 May 2015 and the special review
request was forwarded to this court on 22 May 2015. The
matter
was allocated to the scribe of this judgment on 29 May 2015 and
immediately attended to.
[12]
The proceedings in the court
a
quo
were
not in accordance with justice and the sentence should be adjusted to
provide for payment of a fine as an option. The
senior
magistrate suggested that, without being prescriptive, the sentence
to be imposed might be partially or wholly suspended.
This
country is faced with a serious and continuous influx of illegal
foreigners and I am not prepared to suspend any portion of
the
sentence to be imposed. It would be futile to refer the matter
back to the court
a
quo
to reconsider the sentence as by then, the accused would have served
his sentence. Although the ability of the accused to
pay a fine
has not been recorded, it would be appropriate
in
casu
to deal with sentence now and provide for payment of a fine as an
option. An amount of R1 500.00 would be a just option.
[13] As a result the
following order is granted:
The
sentence imposed by the magistrate is reviewed, set aside and
replaced by the following:
“
The
accused is sentenced to 30 (thirty) days’ imprisonment or
payment of a fine of R1 500.00.”
_______________
J. P. DAFFUE, J
I concur.
_____________
S.
NAIDOO, J
/eb