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2012
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[2012] ZAFSHC 21
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S v Mvulane (447/2011) [2012] ZAFSHC 21 (23 February 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No.: 447/2011
In the review between:-
THE STATE
and
BENJAMIN MVULANE
_____________________________________________________
CORAM:
VAN
DER MERWE, J
et
C.J. MUSI, J
_____________________________________________________
JUDGMENT BY:
VAN DER MERWE, J
_____________________________________________________
DELIVERED ON:
23 FEBRUARY 2012
_____________________________________________________
[1]
The accused stood trial on two counts. In count 1 it was alleged that
the accused contravened section 1 of the Trespass Act
6 of 1959 by
entering onto the farm Voorspoed, Ficksburg without the permission of
the owner thereof. In count 2 it was alleged
that the accused
contravened section 45(1)(a) of the Immigration Act 19 of 2004 in
that the accused on the same date and at the
same place as in count 1
entered into or remained in the Republic of South Africa without a
valid passport.
[2]
The accused pleaded guilty to both charges and was convicted on both
counts as charged. The accused was questioned in respect
of count 1
in terms of
section 112(1)(b)
of the
Criminal Procedure Act 51 of
1977
and he admitted all the elements of the crime. The conviction on
count 2 was however based on the provisions of
section 112(1)(a)
of
the
Criminal Procedure Act. The
two counts were taken together for
purposes of sentence and the accused was sentenced to a fine of R1
000,00 or six months imprisonment.
[3]
The magistrate referred the matter to this court on the basis that a
maximum sentence of three months imprisonment is prescribed
by law in
respect of count 2 and that therefore the alternative sentence of six
months imprisonment is incompetent in respect of
count 2. See
S
v LEITH
1972 (4) SA 262
(C).
[4] In my view however,
the conviction on count 2 cannot stand. There is no such crime as
contravention of section 45(1)(a) of the
Immigration Act 19 of 2004.
Section 45(a)
of the
Immigration Amendment Act 19 of 2004
amended
section 49(1)
of the
Immigration Act 13 of 2002
by substitution of
the wording thereof. The accused should therefore have been charged
with contravention of
section 49(1)(a)
of the
Immigration Act 13 of
2002
, as amended, which provides that a person who enters or remains
in or departs from the Republic of South Africa in contravention
of
the
Immigration Act shall
be guilty of an offence and liable on
conviction to a fine or to imprisonment not exceeding three months.
[5] The fine was paid and
I consider the sentence to be appropriate in respect of count 1 only.
[6] In the result the
conviction on count 1 and the sentence are confirmed but the
conviction on count 2 is set aside.
________________________
C.H.G. VAN DER MERWE,
J
I concur.
___________
C.J. MUSI, J
/sp