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2014
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[2014] ZAFSHC 211
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S v Sithole (174/2014) [2014] ZAFSHC 211 (6 November 2014)
IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Case No: 174/2014
DATE: 06 NOVEMBER 2014
In the matter between:
THE STATE
And
FUNGANI SITHOLE
CORAM: VAN DER MERWE, J et TSATSI,
AJ
JUDGMENT BY: TSATSI, AJ
DELIVERED ON: 6 NOVEMBER 2014
[1] The matter was referred to this
court for special review.
[2] The accused was charged with three
counts, namely:
2.1 Contravention of the provision of
section 1(1) read with section 1(1A), 1(2) and 2 of the Trespass Act
6 of 1959 and further
read with section 250(1)(d) of the Criminal
Procedure Act 51 of 1977 (the Act) – trespass.
2.2 Attempted theft.
2.3 Contravention of the provision of
section 49(1)(a) read with sections 1, 10, 25 and 26 of the
Immigration Act 113 of 2000 –
illegal foreigner.
[3] The accused, who was legally
represented, pleaded guilty. His statement in terms of section
112(2) of the Act was handed in.
The accused was upon conviction of
the crimes as charged sentenced as follows:
3.1 On count 1 – He was sentenced
to one year direct imprisonment.
3.2 On count 2 – He was fined R1
200.00 or four months imprisonment.
3.3 On count 3 – He was fined
R900.00 or three months imprisonment.
3.4 It was ordered that the sentences
on count 2 and 3 run concurrently with the sentence on count 1.
[4] The accused was declared unfit to
possess a firearm.
[5] As a result of an oversight the
statement in terms of section 112(2) did not indicate that the
accused admitted that he entered
on or was upon the land in question.
The accused therefore did not admit all the elements of offence in
count 1.
[6] In the result the conviction and
sentence on count 1 as well as the order that the sentences on counts
2 and 3 be served concurrently
with the sentence on count 1, must be
set aside and the matter remitted to the trial court in terms of
section 312 of the Act.
If sentence on count 1 is imposed afresh,
the court must of course take into account the cumulative effect of
the sentences on
counts 1, 2 and 3 and it may order that the
alternative sentence of imprisonment on counts 2 and 3 run
concurrently with a sentence
of imprisonment on count 1 (see S v
Lalsing
1990 (1) SACR 443
(N), S v Mngadi
1991 (1) SACR 313
(T) and S
v Hatton
1998 (2) SACR 474
(E)).
[7] Accordingly the following order is
made:
7.1 The conviction and sentence on
count 1 as well as the order that the sentences on counts 2 and 3
must be served concurrently
with the sentence on count 1, are set
aside.
7.2 The matter is remitted to the trial
court in terms of section 312 of the Act.
E. K. TSATSI, AJ
I agree.
C. H.G. VAN DER MERWE, J
Ebeket