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
>>
2015
>>
[2015] ZAFSHC 136
|
|
S v Dube (89/15) [2015] ZAFSHC 136 (4 June 2015)
IN THE
HIGH
COURT
OF SOUTH AFRICA
FREE
STATE
DIVISION,
BLOEMFONTEIN
Review No: 89/15
In the review between:
THE STATE
versus
Agripa
Dube
ACCUSED
CORAM:
DAFFUE J
et
NAIDOO, J
JUDGMENT:
NAIDOO, J
DELIVERED O
N:
4 JUNE 2015
REVIEW JUDGMENT
[1] This is a Special Review that came
before us in terms of section 304(4) of the Criminal Procedure Act 51
of 1977 (the Act).
[2] The accused, to whom this review
relates, is accused 2 and another person (accused
1) were charged with one
count of contravening the provisions
of se.ction 1(1)(a) read with sections
(1)(1A), 1(2) and 2 of the Trespass Act
6 of 1959, in that they were found to be unlawfully at level 47
of Eland Shaft, a
mine in the Welkom area, and one count of
contravening section 49(1 )(a) read with other relevant sections of
the Immigration Act
13 of 2000, in that they entered and remained in
the Republic of South Africa without valid travel documents. Accused
1 had absconded
and the matter proceeded only in respect of accused
2. I shall therefore refer to accused 2 as "the accused".
The accused
was legally represented and pleaded guilty to both counts
on 2 April 2015. He was convicted accordingly and sentenced as
follows:
"Count 1 - The accused is fined to
R4000 Rand or Twenty Four (24) months' imprisonment. Plus a further
Twelve Months imprisonment
which is suspended for Five Years on
condition that the accused is not convicted of trespassing on a mine
premises during period
of suspension.
Count 2 - The accused is fined to a
R1000-00 or Thirty Days Imprisonment"
[3] Section 1(2) of the Trespass Act
prescribes the penalty for a contravention of section 1, in terms of
which the accused was
convicted, and provides as follows:
"Any person
convicted of an offence under section 1 shall be liable to a fine not
exceeding R2000 or to imprisonment for a
period not exceeding two
years or to both such fine and such imprisonment"
As a result of the
above, the Senior Magistrate referred the matter to this court with
the comment that the magistrate, in passing
sentence in respect of
count 1, exceeded the maximum of two years' imprisonment prescribed
by the Trespass
Act and suggested
that this court alter the sentence passed by the magistrate and
substitute it as follows:
"Fined R4000
or 12 months imprisonment. In addition the accused is sentenced to a
further 12 months imprisonment which is suspended
for 5 years on
condition that accused not be convicted of contravening section 1(1)
of Act 6 of 1959 where trespassing is committed
on a mine premises
committed during the period of suspension"
[4] It would appear from the suggestion
of the Senior Magistrate above that he/she
overlooked that
section 1(2) also prescribes a maximum fine of
R2000.00. Therefore the imposition of a fine of R4000.00 would also
fall foul of
that subsection. The Senior Magistrate advises that the
accused has already paid an amount of R5000.00 in respect of the
fines
imposed on him in respect of counts 1 and 2. In my view the
magistrate must reconsider the sentence in respect of count 1 in the
light of the provisions of section 1(2) of the Trespass Act. The
accused must also be refunded the amount he has already paid,
prior
to his sentence being re-considered
[7] I accordingly make the following
order:
7.1 The
conviction in respect of counts 1 and 2, and the sentence imposed in
respect of count 2 are confirmed.
7.2
The matter is referred back to the
Magistrate's Court for
sentencing afresh on
coocncncccocount 1
____________
S.
N
AIDOO, J
I agree.
______________
JP
DAFFUE,
J