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[2014] ZAFSHC 243
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S v Rabbi (148/2014) [2014] ZAFSHC 243 (18 December 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Review
No. : 148/2014
In
the case between:
THE
STATE
versus
FALLA
RABBI
CORAM:
C.J. MUSI, J
JUDGMENT:
C.J. MUSI, J
DELIVERED
ON:
18 DECEMBER 2014
[1]
The accused was convicted, by the magistrate Bloemfontein, of
contravening
section 49(1)(a)
of the
Immigration Act 13 of 2002
. He
was unrepresented and pleaded guilty. He was convicted, in terms of
section 112 (1) (a) of the Criminal Procedure Act, 51 of
1977(the
Act). The magistrate sentenced him to a fine of R1000.00 or 100
days imprisonment.
[2]
It was subsequently realised that the magistrate exceeded the
prescribed sentence. The matter was therefore sent on special
review.
[3]
Section 112(1)(a) of the Act reads as follows:
“
(1)
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) imposed any
competent sentence, other than imprisonment or any other form of
detention without the option of a fine or a fine
exceeding the amount
determined by the Minister from time to time by notice in the
Gazette; or
(ii)
deal with the accused otherwise in accordance with law;”
[1]
[4]
Section 49(1)(a) of the Act reads as follows:
“
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 three months.”
[5]
It is clear that the magistrate could not impose a sentence of 100
days imprisonment as an alternative to the fine. The maximum
alternative imprisonment is 3 (three) months.
[6]
The accused has already paid the fine.
[7]
I agree that the sentence should be corrected.
[8]
I accordingly make the following order:
(a)
The conviction is confirmed
(b) The sentence is
set aside and replaced with the following:
R1000.00
or 20(twenty) days imprisonment.
________________
C.J.
MUSI, J
[1]
The
determined amount is R5000.00