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[2012] ZAFSHC 87
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S v Monaheng and Others (22/2012) [2012] ZAFSHC 87 (3 May 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No. : 22/2012
In
the review between:
THE
STATE
versus
THABISO
MONAHENG AND TWO OTHERS
_____________________________________________________
CORAM:
LEKALE, J
et
MHLAMBI, AJ
_____________________________________________________
JUDGMENT BY:
LEKALE, J
DELIVERED ON:
3 MAY 2012
_____________________________________________________
[1] The three accused
persons, all Lesotho Nationals, were convicted of and sentenced for
trespass and being illegal foreigners
in the Republic of South Africa
by the Welkom Magistrates’ Court on 13 January 2012.
[2] They were each
sentenced to R4 000,00 fine or 12 (twelve) months imprisonment of
which R2 000,00 or 6 (six) months imprisonment
was conditionally
suspended for 3 (three) years for contravention of the provisions of
Trespass Act No. 6 of 1959 as charge number
1. They were, further,
each sentenced to R3 000,00 fine or 18 (eighteen) months imprisonment
of which R2 500,00 or 15 (fifteen)
months imprisonment was
conditionally suspended for a period of 3 (three) years for
contravention of the provisions of
Immigration Act No. 13 of 2002
as
charge number 3 after charge number 2 was withdrawn by the
prosecutor.
[3] The matter,
thereafter, served before my sister Van Zyl J on special review in
terms of
section 304(4)
of the
Criminal Procedure Act No. 51 of 1977
as amended (CPA) without any reasons therefor having been furnished.
The sentences imposed raised the eyebrows of the learned reviewing
Judge who, thereupon, directed the following query to the trial
magistrate:
“
Count 1:
The maximum penalty for trespassing is a fine of R2000.00 or
imprisonment for a period not exceeding 2 years or both such
fine and
such imprisonment.
(Section 2(1)
of Act 6 of 1959) ...
Count 3: The penalty clause in the
Immigration Act determines
the penalty to be a fine or imprisonment
not exceeding 3 months. Calculated in terms of ... Adjustment of
Fines Act, it is R5000.00
or 3 months imprisonment. Is the sentence
... not exceeding this limit?”
[4] The learned
magistrate has since responded apologising for the oversight in not
enclosing the reasons and pointing out that:
4.1 Ad charge 1: The
sentence is in line with our law and recent decisions which were sent
on review and confirmed.
4.2 Ad charge 3: The
sentence exceeds the limit prescribed by
Immigration Act and
it was
for that reason that the matter was earmarked for special review.
[5] I am in respectful
agreement with the trial magistrate that the sentences in respect of
charge 3 exceed the penal jurisdiction
prescribed by the
Immigration
Act and
are, as such, a nullity in law and fall to be corrected
ipso
facto
. (See
S v NTULI
1975 (1) SA 439
(A) at 435 C
and
S v HAYMAN
1988 (1) SA 831
(NC).)
[6] I can, however, not
agree with the court
a quo
that the sentences in respect of
the trespass charge
viz
charge number 1 are in line with our
law. As correctly pointed out by Van Zyl J in the query,
section 2
of
Trespass Act limits the penal jurisdiction of the sentencing court in
peremptory terms.
[7] The trial court,
therefore, exceeded its jurisdiction by imposing incompetent
sentences. The sentences in question also fall
to be corrected.
[8] I am satisfied from
the record that the convictions are in accordance with justice.
[9] The trial magistrate
proposes a fine of R500,00 or 45 (forty five) days imprisonment as an
appropriate sentence in respect of
charge number 3 and in respect of
each accused person. I can find no fault with the proposal save for
the fact that the provisions
of Adjustment of Fines Act No. 101 of
1991 are applicable because the maximum fine is not prescribed while
the maximum period of
imprisonment is prescribed.
[10] It is clear from the
record that each accused paid the fine and got released immediately
after the sentences were imposed.
ORDER:
[11] Consequently the
convictions are confirmed but the sentences are set aside and in
their places and stead are substituted the
following:
“
Each
of the three accused persons is sentenced as follows:
Ad charge 1: A fine of
R2 000,00 or 2 (two) years imprisonment and a further 2 (two) years
imprisonment suspended for 3 (three)
years on condition that the
accused is not found guilty of violating the provisions of section
1(1)(a) or (b) read with sections
1(1A), 1(2) and 2 of the Trespass
Act No. 6 of 1959 and further read with
section 250(1)(d)
of the
Criminal Procedure Act No. 51 of 1977
;
Ad charge 3: R500,00
or 10 (ten) days imprisonment.
”
[12] The sentences are
antedated to take effect from 13 January 2012.
_____________
L.J. LEKALE, J
I concur.
_______________
J.J. MHLAMBI, AJ
/sp