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[2014] ZAFSHC 124
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S v Ntshonyane and Another (99/2014) [2014] ZAFSHC 124; 2015 (2) SACR 70 (FB) (21 August 2014)
HIGH
COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
Number : 99/2014
In
the matter between:-
THE
STATE
and
RETHABILE
NTSHONYANE
THABANG
NTSHONYANE
CORAM:
DAFFUE , J
et
MURRAY,
AJ
JUDGMENT
BY:
MURRAY, AJ
DELIVERED
ON:
21 AUGUST 2014
[1]
This is a Special Review pursuant to the conviction and sentence of
the two accused in terms of the Aliens Control Act, Act
96 of 1991,
which Act was repealed as a whole by the
Immigration Act, 13 of 2002
.
[2]
The Additional Magistrate, Welkom, requested this Court to set aside
the said conviction and sentence since it was imposed in
terms of a
repealed Act.
[3]
The first judge tasked with the review, addressed two questions to
the Court
a quo
,
namely:
“
1.
Is this not a case where on review the conviction under the repealed
statute can be replaced by a conviction under the new statute
because
there is no prejudice to the accused? [SEE:
S
v Busuku
2006 (1) SACR 96
(EC)]
2.
Under which section of the
Immigration Act, 13 of 2002
, should the
accused have been charged?”
[4]
The relevant magistrate replied that the accused
in
casu
should have been charged under
Section 49(1)(a)
of the
Immigration Act, Act
13 of 2002, and answered
the other question as follows:
“
AD
PARAGRAPH 1:
The
difference that I found between this case and
S
v Busuku
is that the conviction was
based on the contravention of a law that exists, which is
contravention of
Section 51(1)
, Act 51 of 1977, the only thing that
did not exist was the penalty clause, as penalty was in terms of a
repealed law, which is
Section
48, Act 8
of 1959, which was replaced
by Section 117(a), Act 111 of 1998. It is clear that the
conviction was sustained, because all
the elements of the offence
were met, the offence being contravention of Section 51(1), Act 51 of
1977. The problem was with
the sentence.”
[5]
The J4 indicates that both accused
in
casu
upon being convicted were on 13
May 2014 sentenced to payment of R1 500 or three months’
imprisonment. The Magistrate
in her first covering letter of 20
May 2014 reported that the accused elected not to pay the alternative
fine and were both serving
their terms of imprisonment.
[6]
The charge, as set out in the charge sheet, was contravention of the
provisions of Section 23(a) of the Aliens Control Act,
96 of 1991 in
that
“
On
or about 9 May 2014 at or near Welkom the accused unlawfully and
intentionally entered or were found within the borders of the
Republic of South Africa without being in possession of an
immigration permit issued in terms of Act 96 of 1991.”
[7]
Both accused in Court indicated that they understood the charge
against them and that they pleaded guilty to the said charge.
The Court explained to both that they had the right to legal
representation; the right to apply for access to witness statements
and the right to apply for bail. It informed them, furthermore,
of their right to remain silent and of the consequences of
electing
not to do so.
[8]
In view of the nature of the sentence, namely a fine of R1 500,
or, alternatively, three months’ imprisonment, there
was no
need for a Section 112(1)(b) enquiry in terms of the Criminal
Procedure Act, Act 51 of 1977. The Court allowed
both
accused to lead evidence in mitigation regarding their sentences. No
previous convictions were proved and the said sentence
was imposed.
[9]
In the case to which the Additional Magistrate was referred,
S
v Busuku
[1]
,
the conviction of an accused for contravention of
Section 51(1)
of
the
Criminal Procedure Act, 51 of 1977
was set aside on review by
virtue of the provisions of
Section 270
of the said Act, and altered
to a conviction on contravention of Section 117(a) of the
Correctional Services Act, Act 111 of 1998.
[10]
In the said case the Court held that Section 270 provided for the
alteration of an accused’s conviction under an incorrect
Act to
a conviction under a correct Act if the essential elements of the
alleged competent verdict were included in the original
charge. The
prerequisites for such alteration are that the competent verdict be
proved and that the accused suffers no prejudice
from the alteration
of his conviction to the contravention of another Act.
[2]
[11]
Regarding a court’s powers to convict an accused of having
committed an offence other than the offence alleged in the
indictment, Section 270 specifically provides that:
“
If
the evidence on the charge for any offence not referred to in the
preceding sections of this Chapter does not prove the commission
of
the offence so charged but proves the commission of an offence which
by reason of the essential elements of that offence is
included in
the offence so charged, the accused may be found guilty of the
offence so proved.”
[12]
Evidently Section 270 can only be invoked in respect of an offence
not mentioned in Chapter 26 of the Act.
[3]
It has been held
“
that
the enquiry, when determining whether to invoke the provisions of
Section 270 of the Act, is whether the essential elements
of the
alleged competent verdict were included in the original charge.”
[4]
[13]
From the case law it is clear that the essential elements of the
competent verdict need only correspond with the
essential
elements of the charge as set out in the charge-sheet
[5]
,
not with
all
the
allegations in the charge. That was confirmed in
S
v Mbatha
[6]
where
the Court pointed out that the
“
criterion
under [Section 270] is to be found exclusively in the essential
elements of the offence charged, irrespective of any additional
allegations which may have been embodied in the charge.”
[14]
It has also been made clear that the requirement is correspondence
with the essential elements of the
charge
,
not with the
legal
definition
of the offence. This was the approach in
S
v Nkosi
[7]
and
in
S
v Mei
[8]
in
which it was stated that
“
There
is much to be said for the view that the wording of the new section
[i.e. Section 270] bears the meaning that, as long as
the ‘essential
elements’ of the lesser offence are included ‘in the
offence so charged’, i.e. in the charge
sheet (not the legal
definition of the crime), a finding of guilt on the lesser crime is
competent.”
[15]
In
S
v Mavundla
[9]
,
for
instance,
the
conviction was confirmed on appeal on the basis that the charge as
framed against the accused indeed included all the essential
elements
of the competent verdict. The Court stated:
“
Met
eerbied doen ek aan die hand dat die vraag eenvoudig is of die bewese
misdryf, uit hoofde van sy wesenlike bestanddele, deur
die ten laste
gelegde misdryf omvat word. Die ondersoek word in die eerste
plek gerig op die wesenlike bestanddele van die
bewese misdryf, met
ander woorde die misdaadomskrywing; die tweede stap is dan om
te bepaal of daardie bestanddele by die
‘ten laste gelegde
misdryf’ inbegrepe is en dit verg oorweging van die opgestelde
aanklag wat in die besondere geval
betrekking het.”
[16]
In
S
v Mokoena
[10]
the
accused was convicted of the contravention of
Section 51(1)
of the
Criminal Procedure Act but
on the facts, on review, this conviction
was set aside and the review Court, relying on
Section 270
and the
absence of prejudice to the accused, convicted the accused of a
contravention of
Section 117(a)
of the
Correctional Services Act, 111
of 1998
.
[17]
In
Makofane
and Another v S
[11]
,
too, the Court held that the elements of the offence in terms of
Section 51(1)
of the
Criminal Procedure Act, as
alleged in the charge
sheet, were
“
essentially
the same as the offence in terms of Section 117 of the Correctional
Service Act.”
[18]
To determine whether the instant case is indeed one in which the
conviction and sentence in terms of the repealed Aliens Control
Act
can be altered to a conviction in terms of the
Immigration Act by
virtue of the provisions of
Section 270
, one therefore needs to
determine, first of all, what the essential elements of the
charge
against the accused are. They appear to be:
1.
Intentional unlawful entry or presence in
the country
2.
of a non-South African citizen
3.
without an immigration permit.
[19]
Section 23
of the repealed Aliens Control Act, Act 96 of 1991,
provided as follows:
“
Section
23 Restriction on Entry Into and Residence in Republic
Subject
to the provisions of Sections 28 and 29, no alien shall:
(a)
Enter or sojourn in the Republic with a
view to permanent residence therein, unless he or she is in
possession of an immigration
permit issued to him or her in terms of
Section 25; or
(b)
Enter or sojourn in the Republic with a
view to temporary residence therein, unless he or she is in
possession of a permit for temporary
residence issued to him or her
in terms of section 26.”
[20]
In the
Immigration Act the
provision that appears to come the closest
to
Section 23(a)
,
supra,
is
Section 9(4)
which reads:
“
9
Admission and Departure:
(4) A foreigner who
is not the holder of a permanent residence permit contemplated in
Section 25
may only enter the Republic as contemplated in the Section
if:
(a) his passport is
valid for a prescribed period; and
(b)
issued with a valid visa…”
[21]
One needs to determine, then, what the essential elements of a
contravention of
Section 9(4)
of the
Immigration Act would
be, to see
if the charge in terms of
Section 23(a)
of the repealed Act could
conceivably be altered in terms of Section 270 of Act 51 of 1977 to a
charge in terms of Section 9(4)
of the
Immigration Act.
[22
]
The essential elements of a contravention of
Section 9(4)
appear to
be:
1.
Entry into the country
2.
by a non-South African citizen
3.
without a permanent residence permit,
or
4.
a passport with a valid visa
[23]
The term “
permit for permanent
residence”
in the earlier
versions of the Aliens Control Act was substituted in terms of the
Aliens Control Amendment Act, Act 76 of 1995,
with the term
“
immigration permit”.
The repealing
Immigration Act,
however
, again replaced the term ‘
immigration
permit”
with “
permanent
residence permit”.
The
difference in terminology in the third requirement can therefore
safely be seen as referring to the same document.
[24]
The
Immigration Act, furthermore
, replaced all references to
‘
permit’
or ‘
permits’
with
‘
visa’
or
‘
visas’
,
“
except in cases where reference is made
to a permanent residence permit…
”
Section 1
of the
Immigration Act defines
“
visa”
as the
“
authority
to remain in the country on a temporary basis”.
The
“
valid visa”
required
in
Section 9(4)(b)
of the
Immigration Act therefore
corresponds to
the “
temporary residence permit”
required by
Section 23(b)
of the repealed
Act.
[25]
Section 9(4) is therefore, in my view, the new version of Section
23(a) of the repealed Act, even though the two provisions
are far
from identical. Other than Section 23(a), for instance,
Section 9(4) addresses only “
entry”
into, not “
sojourning”
in, the country, rendering it more
restrictive in that respect. And while Section 23(a) is framed
as an imperative prohibition
(“
no
alien shall…enter or sojourn…unless he is in possession
of …”
),
Section 9(4) reads, (
“
a
foreigner who is not in possession of …may only enter …
if…”
). Despite the
differences, though, one could argue that, in essence, the two
provisions are similar enough to be regarded
as containing the same
essential elements.
[26]
The test for a conviction on a competent verdict by virtue of the
provisions of
Section 270
of the
Criminal Procedure Act, however
, is
not whether the elements of the statutory provisions are the same,
but whether the essential elements of the
charge
encompass those of the competent
verdict.
[27]
Apart from the fact that all the essential elements of
Section 9(4)
are not encompassed in
Section 23(a)
it appears doubtful that
conviction under
Section 9(4)
of the
Immigration Act can
be seen as a
competent verdict on a charge in terms of Section 23 (a) of the
Aliens Control Act which was repealed by the
Immigration Act.
[28
]
The Magistrate’s proposal that the accused should be charged
with a contravention of
Section 49
of the
Immigration Act by
itself,
is not competent either.
Section 49
is merely a general
penal provision which renders the contravention of any provision in
the Act an offence:
“
49
Offences
(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.”
[29]
It is clear, therefore, that Section 49 would have to be read with
the specific section which the accused contravened in order
to be
applicable in the instant matter. There are, however, other
than Section 9(4), no other provisions in the
Immigration Act which
deal with entering into in the country with a view to permanent
residency.
Sections 25
to
28
address permanent residence
permits only to the extent that such a permit grants the holder
thereof “
all the rights, privileges, duties and obligations
of a citizen”
and prescribe the conditions under which a
foreigner can be awarded and be allowed to retain such a permit or
have it revoked.
[30]
The solution to the fact that an alteration of the conviction in
terms of the repealed Act in terms of Section 270 of Act 51
of 1977
would not be competent, might lie in
Section 54
of the
Immigration
Act, however
, which provides as follows:
“
54
Repeal of laws
(1)
The laws mentioned In Schedule 3 are hereby
repealed or amended to the extent set out in its third column;
(2)
Anything done under the provisions of a law
repealed by subsection (1) and which could have been done under this
Act shall be deemed
to have been done under this Act.”
[31]
The Aliens Control Act is one of the two Acts mentioned in Schedule 3
which are wholly repealed by the
Immigration Act. By
implication
then, if what was done under
Section 23(a)
of the repealed Act, could
have been done under the
Immigration Act, it
shall be deemed to have
been done under the
Immigration Act.
[32
]
The object of the
Immigration Act is
stated to be
“
To
provide for the regulation of admission of persons to, their
residence in, and their departure from the Republic, and for matters
connected therewith”.
[33]
The intention of the Legislature as appears from the Preamble, is:
“
In
providing for the regulation of admission of foreigners, their
residence in … the
Immigration Act aims
at setting in place a
new system of immigration control which ensures that: …
(b) security considerations are
fully satisfied and the State retains
control over the immigration of foreigners to the Republic…”
[34]
It is clear, therefore, that it could never have been the intention
of the Legislature in repealing the Aliens Control Act
and enacting
the Immigration Control Act to do away with the prerequisite of a
permanent residence permit for a foreigner’s
permanent stay in
the Republic.
[35]
In my opinion, then, in view of the explicit object of the Act,
namely to regulate the admission and residence of foreigners
in the
Republic, the converse of the prohibition in Section 9(4) must be
true as well: namely that a foreigner without a
valid visa (for
a temporary sojourn) or a passport valid for a prescribed period may
only enter into and sojourn in the Republic
if he is in possession of
a permanent residence permit.
[36]
There does not appear to be any reason, therefore, why the charge
could not have been brought in terms of Section 9(4) read
with
Section 49
of the
Immigration Act. That
would then entail
that the conviction and sentence in terms of
Section 23(a)
of the
repealed Aliens Control Act can, in terms of
Section 54
of the
Immigration Act, be
deemed to have been imposed on the accused in
terms of the
Immigration Act.
[37
]
The reference in the charge sheet to a provision of a repealed Act
did not have any apparent adverse influence on the way the
court
proceedings were conducted. There did not appear to be
any failure of justice or unfairness in the conduct of
the
proceedings resulting from the fact that the accused were charged in
terms of a repealed provision,
[12]
since, if the reference to Section 23(a) were to be removed, the
factual averments in the charge would still be sufficient to prove
an
offence in terms of the
Immigration Act.
[13]
[38]
What one needs to keep in mind throughout, is that the review Court’s
powers in terms of
Section 304(4)
are akin to those of a Court of
Appeal in terms of
Section 322
of the
Criminal Procedure Act which
provides that:
“
no
conviction or sentence shall be set aside or altered by reason of any
irregularity or defect in the record of the proceedings,
unless it
appears to the court of appeal that a failure of justice has in fact
resulted from such irregularity or defect.”
[14]
[39]
As in the appeal procedure, the test to be applied by the review
Court is not only whether the proceedings were technically
sound, but
whether they were in accordance with justice. If they were not,
the review Court would intervene
[15]
.
Before a review Court will intervene where an admission of guilt was
made, as
in
casu
,
the Court needs to be satisfied that the admission was probably
mistaken or incorrect.
[16]
[40]
The Appellate Division has determined that the test for a failure of
justice is clearly established. It requires the
appellate
Court, and in my view, also a review Court, to exclude from
consideration all aspects of the proceedings that were affected
or
influenced by the irregularity and to evaluate only the remaining
evidence. If, on consideration thereof, a conviction
would have
followed, there has been no failure of justice.
[17]
Heher, JA, stated at para [16] that:
“
There
is therefore, within the scope of
s 322(1)
, no room for approaching
any irregularity or defect in the record or the proceedings
(including the charge or indictment) as per
se nullifying a
conviction in a criminal trial.”
[41]
In
S
v Keyser
[18]
it was confirmed that even the inclusion in a charge sheet of
references to statutory provisions that have been declared
unconstitutional,
though that would be irregular, does not
per
se
mean that there has been a failure of justice or an unfair trial.
[42]
In casu
there is nothing in the record which shows that the reference to a
provision of the repealed Act influenced the guilty plea by
the
accused or the Magistrate’s decision to convict them.
They were therefore not deprived of a fair trial by
being charged in
terms of Section 23(a) of the repealed Aliens Control Act rather than
in terms of the
Immigration Act. In
my view no injustice
therefore occurred or would occur if they were to be deemed to have
been charged in terms of the
Immigration Act.
[43
]
In the premises it would not be necessary or indeed competent to set
aside the conviction and sentence as requested.
[44]
In my view, furthermore, there would be no prejudice to the accused
either if their conviction and sentence were deemed to
have been
imposed in terms of the
Immigration Act. The
Aliens Control Act
limited the sentence to a fine or imprisonment of up to twelve
months.
Section 49
of the
Immigration Act provides
for a
sentence of up to two years upon conviction. The sentence of
three months’ of imprisonment imposed by the Court
in
casu,
with a fine as alternative, is
therefore lenient when compared with the maximum sentences provided
for by either of the Acts.
[45]
In the absence of any failure of justice or prejudice to the accused,
the conviction and sentence in terms of
Section 23(a)
of the repealed
Aliens Control Act can therefore be confirmed and be deemed to have
been imposed in terms of Section 9(4) read
with
Sections 49
and
54
of
the
Immigration Act.
WHEREFORE
the following order is made:
1.
The conviction and sentence by the court
a
quo
is confirmed and is deemed to have
been imposed in terms of
Section 9(4)
read with
Section 49
and
54
of
the
Immigration Act, Act
13 of 2002.
______________
H.
MURRAY, AJ
I
concur.
_____________
J.P. DAFFUE, J
[1]
See:
2006 (1) SACR 96 (E)
[2]
See
also:
Makofane
v S
,
unreported judgment (NGD) A1099/09, 10 December 2012, para [14] at
p.7.
[3]
See:
Du Toit
et
al
:
COMMENTARY
ON THE
CRIMINAL PROCEDURE ACT
,
Service 49, 2012 at p. 26-20
See
also:
S v M
1979 (2) SA 167 (T) and generally
S
v Masita
2005 (1) SACR 272 (C)
[4]
See:
S
v Busuku
2006 (1) SACR 96
(E) at para [12] at p. 99
[5]
See:
S
v Amas
1995(2)
SACR 735(N) at 741.
[6]
See:
1982 (2) SA 145
(N) at 147 D - E
[7]
See:
1990 (1) SACR 653 (T)
[8]
See:
1982 (1) SA 299
(O) at 303 G - H
[9]
See:
1980 (4) SA 187
(T) at 190 H – 191 A
[10]
See:
Unreported TPD (Case Number A402/2007, 14 May 2007)
[11]
See:
Unreported GNP Case Number A1099/09, 10 December 2010
[12]
See:
S
v Daniels and Another
2012(2) SACR 459 (SCA) at para [17] at p. 465 and para
[22] at p. 467.
[13]
See:
S
v Daniels
,
supra,
at
para [5] at p. 462.
[14]
See:
S
v Carter
2007(2)
SACR 415 (SCA) at para [28] at p. 428.
[15]
See:
S
v Mahlangu
2000(2) SACR 2010 (T) at p. 210.
[16]
See:
S
v Cedras
1992 (2) SACR 530
(C) at p. 531 – 532.
[17]
See:
S
v Daniels
,
supra,
at
para [14] at p. 464
[18]
2012(2)
SACR 437 (SCA) at para [4] at p. 438