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2014
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[2014] ZAFSHC 223
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S v Mokhali (228/2013) [2014] ZAFSHC 223 (18 December 2014)
IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION:
BLOEMFONTEIN
Review No: 228/2013
DATE: 18 DECEMBER 2014
In the special review matter
between:
THE STATE
And
LETSOENYEHO MOKHALI
CORAM: VAN ZYL, J et MOENG, AJ
JUDGMENT: MOENG, AJ
DELIVERED ON: 18 DECEMBER 2014
[1] This matter was placed before me on
special review in terms of
section 304
(4) of the
Criminal Procedure
Act 51 of 1977
(‘CPA’). The accused was charged with
contravention of
section 49(1)
of the
Immigration Act 13 of 2002
. The
state alleged that the accused, on 16 November 2014, unlawfully
entered or remained in the Republic of South Africa. The accused
pleaded guilty to the charge before the magistrate Bloemfontein and
was, in terms of
section 112(1)
(a) of the CPA, convicted and
sentenced to a fine of R1000.00 or 45 days imprisonment.
[2] Immediately after the imposition of
sentence, the accused brought it under the attention of the presiding
magistrate that he
was in possession of a valid passport. A copy
thereof was attached to the record of the proceedings. The presiding
magistrate expresses
the view that the conviction and sentence are
therefore not in order and requests that the entire proceedings be
set aside.
[3] In terms of
section 49
(1) (a) of
the
Immigration Act, ‘ 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’.
Section 9
(4) (a) and
(b) of the Act in turn provides that 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 his or her
passport is valid for a prescribed period and is issued
with a valid
visa, as set out in the Act.
[4] It appears ex facie the copy of the
passport that was at the disposal of the magistrate and attached to
the record, that the
accused is a citizen of the Kingdom of Lesotho.
His passport was issued on 6 February 2012 and is set to expire on 5
February 2022.
The accused entered the Republic of South Africa on 26
October 2014 through the Van Rooyen’s Boarder Gate and was
allowed
to remain the Republic until 25 November 2014. It is common
cause that the accused was convicted of having unlawfully entered or
remained in the Republic on 16 November 2014. His passport was valid
and his stay in the Republic was therefore lawful when he
was
convicted and sentenced.
[5] The following order is accordingly
made;
1. The conviction and sentence are set
aside.
L.B.J. MOENG, AJ
I concur
C. VAN ZYL, J