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[2012] ZAFSHC 2
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S v Ntai (227/2011) [2012] ZAFSHC 2 (12 January 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No.: 227/2011
In the review of:-
THE STATE
and
PHEELLO MICHAEL
NTAI
_____________________________________________________
JUDGMENT BY:
VAN DER MERWE, J
_____________________________________________________
DELIVERED ON:
12 JANUARY 2012
_____________________________________________________
[1]
The accused person, a citizen of Lesotho, pleaded guilty to the
charge set out below. He was however convicted of
“
...
having been in unlawful possession of an identity document belonging
to the Republic of South Africa.”
He
was on 5 April 2011 sentenced to a fine of R2 000,00 or twelve months
imprisonment, on which date the fine was paid.
[2]
I am unable to suppress the expression of dismay at the incompetent
handling of this matter and the resultant prejudice to the
accused
person. As I will show, the charge against the accused did not
disclose an offence and the accused was convicted of conduct
that he
was not only not charged with, but does not constitute a crime. In
addition the matter was postponed after conviction and
before
sentence for a period of approximately three months, for no valid or
acceptable reason. During this period the accused remained
in custody
without bail.
[3]
The charge sheet alleges as follows:
“
CHARGE:
PRODUCE A DOCUMENT PURPORTING TO BE A DOCUMENT ISSUED OR ADMINISTERED
BY THE DEPARTMENT OF HOME AFFAIRS NOT ALLOWED TO HAVE
IN POSSESSION
That the accused
is guilty of the offence of contravening Section 49(9) read with
Section 1, of the Immigration Act, Act 13 of 2002
NOW WHEREFORE
UPON (OR ABOUT) 29/12/2010 AND at or near BORDER POST
In the district
of FICKSBURG the accused unlawfully produced a document issued or
administered by the Department of Home Affairs,
knowingly he/she is
not entitled to have in possession, to wit A LESOTHO PASSPORT WITH NR
142/79 and a South African ID of THOBILE
PATRIC NDEBELE with ID no
8305205819084”
The
prosecutor subsequently abandoned reliance on the Lesotho passport.
[4]
Section 49(9)
of the
Immigration Act, 13 of 2002
, provides as
follows:
“
Anyone,
other than a duly authorised civil servant, who manufactures or
provides or causes the manufacturing or provision of a document
purporting to be a document issued or administered by the Department,
shall be guilty of an offence and liable on conviction to
a fine or
to imprisonment not exceeding two years.”
It
is clear that this section bears no relation to the allegation that
the accused produced a document at the border post which
he knew that
he was not entitled to possess.
[5]
The accused said that he obtained the identity document in question
by paying a sum of money to a person who then applied for
the
identity document at the offices of the Department of Home Affairs in
Johannesburg and subsequently handed the document to
the accused. The
indication therefor is that the identity document was validly issued
to an actual person.
[6]
The accused was adamant that when he attended the South African
border post at Ficksburg on his way home, he did not present
the
identity document and that it was found when his bag was searched.
Despite the allegation in the charge that the accused produced
the
identity document at the border post, he was convicted of unlawful
possession of an identity document. The mere possession
of an
identity document belonging to another person is not a crime.
Section
18
of the
Identification Act, 68 of 1997
, deals with offences and
penalties in respect of identity documents.
Section 18(1)(d)
provides
that no person shall, having come into possession of an identity
card, a certificate or a temporary identity certificate
belonging to
another person, present it as his or her own or belonging to any
person other than the person to whom it belongs.
[7]
The accused pleaded guilty and was convicted on 3 January 2011. His
rights in respect of sentence were then explained to him
and he fully
addressed the court in respect of sentence. During the address of the
prosecutor before sentence however, the magistrate
postponed the
matter to 7 January 2011.
[8]
On 7 January the magistrate informed the accused as follows:
“
Sir,
your case was remanded to today for finalization. Now this Court has
come to realize after your conviction that there are two
provisions
here of the
Immigration Act. These
provisions provide for the same
offence and for the same kind of punishment that may be imposed after
conviction upon such an offence.
There is an
Immigration Act 13 of
2002
under which you have been charged. There is another
Immigration
Act [indistinct
] Immigration Act of 2004. Now this latter act that
provides similarly for the same offence, but under a different
section. Now
that you have been convicted this come forward to the
mind of this Court. Now there is no way how to rectify that other
than sending
this matter on a special review by a Judge with a
motivation from this Court as to why it is being so referred, meaning
therefore
the proceedings are not being initiated any further now for
the special review of this matter first to be finalized, which means
at this junction this matter has to be remanded to sometime in April
because it will have to be transcribed first and then after
the
transcription it will be returned to this Court and then be send for
review to Bloemfontein, hence then the postponement until
sometime in
April.”
The
matter was then postponed to 4 April 2011.
[9]
This is inexplicable. The position is simply that some of the
provisions of the Immigration Act had been amended, with effect
from
1 July 2005, by the
Immigration Amendment Act 19 of 2004
. In the
result the matter was for no reason postponed for a period of
approximately three months whilst it was realised that the
accused
would not be released on bail.
[10]
For these reasons the conviction and sentence are set aside.
________________________
C.H.G. VAN DER MERWE,
J
/sp