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[2013] ZAFSHC 100
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S v Mochochonono (71/2013) [2013] ZAFSHC 100 (25 April 2013)
FREE
STATE HIGH COURT. BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Review
No. : 71/2013
In
the review between
THE
STATE
and
NEO
MOCHOCHONDNO AND 8 OTHERS
CORAM:
MOCUMIE,
J
et
MOLEMELA. J
DELIVERED
ON:
25
APRIL 2013
MOCUMIE,
J
[1]
The nine accused appeared in the Magistrate court, Welkom, on two
counts. Count 1 was in respect of a contravention of section
1 (1)
Act 6
of 1959, trespassing, and count 2 was in respect of a
contravention of section 49 (1)(a) of the Immigration Act, Act 13 of
2002
(“the
Immigration Act
”),entering
the Republic of South Africa without a valid passport or any other
legal documents. They all (accused 1 to 6 and
accused 8 and 9)
pleaded guilty to both counts and were convicted as charged. The
State elected not to proceed
on
count 2 against accused 7.They were all, except accused 7 in respect
of count 2, sentenced as follows:
“
Count
1:12(twelve) months imprisonment.
Count
2: Fine[d]
R1500(one
thousand five hundred rand)or 6 (six) months imprisonment”
[2]
The magistrate seized with the matter placed it before this Court on
special review in terms of section 304 of the Criminal
Procedure Act
51 of 1977 (“the CPA”) on the basis that
she
“[has] exceeded the penal jurisdiction when sentencing the
accused on a charge of contravening section 49(1 )(a) of the
Immigration Act,Act 13 Of 2002.”
She
furtherrequested this Court to
“alter
the sentence to read R1500,00 or 3 months imprisonment.”
[3]
In their guilty pleas in terms of section 112 of the CPA which were
contained in written statements which were read into the
record and
admitted as exhibits A-l, in respect of count 2, they all, i.e.
accused 1 to 6 and accused 8 and 9, admitted entering
and remaining
in‘the Republic of South Africa without valid passports or any
other legal documents. The
magistrate
was, correctly so, satisfied with their explanation and convicted
them as charged.
[4]
The only issue this Court has to address is the sentences the
magistrate imposed on all nine accused as set out above in respect
of
count 2 only. For this reason it is important to quote the relevant
section that gives a court the powers to impose a particular
sentence
on an accused once convicted of contravening s49 of the Immigration
Act.
[5]
Section 49 (1) (a) of the Immigration Act provides:
“
Anyone
who enters or remains in 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".
[6]
Contravention of s49 (1) (a) is by its very nature a very serious
offence. Lately it is an offence that is generally committed
in
conjunction with other serious offences such as trespassing, coupled
with theft of minerals such as gold on old mines which
have been shut
down due to safety concerns on them or exhausted resources. It is
also sometimes linked to stock theft or more serious
offences such as
murder and drug trafficking.
[7]
It has to be acknowledged upfront that the penalty prescribed in the
Act can be quite frustrating for presiding officers as
it limits them
from imposing heavier sentences in appropriate cases in order to send
the right message to society and illegal immigrants,
taking into
consideration the consequences that usually flow from its
contravention as highlighted above: that entering the Republic
of
South Africa illegally is regarded in a serious light and will be
dealt with severely. However, until the legislature intervenes
by
increasing the penal jurisdiction to suit the seriousness of this
offence, courts are duty-bound to impose a fine or to imprisonment
not exceeding three months.
[8]
It is therefore clear that the trial magistrate exceeded her
jurisdiction when she imposed six months imprisonment instead of
three months as the section prescribes and as she correctly
acknowledged in her request for review. However, in my view, this is
not an error to be corrected as if it is a typing error. It is a
material irregularity which vitiates the proceedings.
[9]
In the circumstances and based on that material irregularity the
sentence imposed in respect of count 2 ought to be set aside
and
substituted with the following.
SENTENCE:
In
respect of count 2,contravention of section 49 (1) (a) of the
Immigration Act, Act 13 of 2002, accused 1 to 6 and 8 to 9 are
each
sentenced as follows:
“
R
1 500.00 (One thousand and five hundred rand) or 3 (three) months
imprisonment.”
B.C.
MOCUMIE, J
I
concur.
M.B.
MOLEMELA, J