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[2014] ZAFSHC 84
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S v Jwele (118/2014) [2014] ZAFSHC 84 (13 June 2014)
FREE
STATE HIGH COURT. BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Review Case No:
118/2014
In the matter
between
THE
STATE
….....................................................................................................................................
Applicant
and
THABO
JWELE
…............................................................................................................................
Respondent
CORAM:
RAMPAI,
AJP
et
DAFFUE,
J
JUDGMENT
BY:
RAMPAI,
AJP
DELIVERED
ON:
13
JUNE 2014
[1] The matter came
before me by way of a special review. The accused was convicted on
the 5
th
June 2014 on a charge of contravening section 49(1
)(a) of Act No 13 of 2002. He pleaded guilty to the charge that he
was an illegal
foreigner or prohibited immigrant. Following his plea
the magistrate applied the procedure in terms of
section 112(1)(a)
of
the
Criminal Procedure Act 51 of 1977
.
[2] The accused was
then summarily sentenced to 3 months direct imprisonment in terms of
section 276(1)
Act 51 of 1977. He is currently serving the sentence
at the Virginia Correctional Facility.
[3] The matter came
to the attention of the senior magistrate, Mr S F Ferreira. Having
perused the record, he came to the conclusion
that the trial
magistrate committed a reviewable procedural irregularity by imposing
a sentence of 3 months direct imprisonment
without an option of a
fine. Such a sentence, the senior magistrate reasoned, could not be
properly imposed in terms of section
112(1 )(a) of Act No 51 of 1977.
[4] It is useful to
quote the relevant section. Section 112(1 )(a) stipulates:
“
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 fee
exceeding the amount determined by the Minister from time
to time by
notice in the
Gazette"
[5] At paragraph 4
of his memorandum dated the 10
th
June 2014 the senior
magistrate said the following:
“
It
was also decided in
S
v Khoalane
2012 (1) SACR 8
(FB) page 10 paragraph 6 by Honourable Judge Rampai
that:
‘
Before
the questioning in terms of sub-s(1)(b) can be jettisoned, before
sub-s (1)(a) can be invoked and before an unrepresented
accused can
be convicted on her unexplained plea of guilty, a court has to form
an opinion that the charge concerned is a minor
crime,
that the accused would have the option of paying a fine to stay out
of a correctional facility
and that such fine would not exceed the statutory maximum limit.
These are the crucial segments of the jurisdictional facts,”
[6] On the strength
of the aforesaid decision as well as the statutory provision, the
senior magistrate suggested that the sentence
be set aside; that the
matter be sent back to the district court and that a sentence be
considered afresh.
[4] I am persuaded
that the accused was irregularly sentenced. The procedural
irregularity cannot be allowed to stand. I would,
therefore, set the
sentence imposed on the accused aside.
[8] Accordingly I
make the following order:
8.1 The
conviction of the accused stands.
8.2 The sentence
imposed on him on the 5
th
June 2014 is set aside.
8.3The trial
magistrate is directed to sentence the accused afresh bearing in mind
the guidelines outlined herein and to sentence
the accused afresh if
all the requirements of the section are met.
M.H. RAMPAI, AJP
I concur.
J.P. DAFFUE, J