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2012
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[2012] ZAFSHC 191
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S v Ramakewana (189/2012) [2012] ZAFSHC 191 (18 October 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No. : 189/2012
In
the matter between:-
THE
STATE
and
TEKE
RAMAKEWANA
_____________________________________________________
CORAM:
HANCKE, AJP
et
DAFFUE, J
_____________________________________________________
JUDGMENT BY:
DAFFUE, J
_____________________________________________________
DELIVERED ON:
18 OCTOBER 2012
_____________________________________________________
[1]
This is a special review in accordance with the provisions of section
304(4) of the Criminal Procedure Act, 51 of 1977 (“the
Act”).
[2]
The accused was charged with and convicted of contravening
section
49(1)
of the
Immigration Act, 13 of 2002
in that he entered and/or
remained illegally in the Republic of South Africa. The accused was
represented by a legal representative
who prepared a statement in
terms of section 112(2) of the Act for and on his behalf. Having been
satisfied with the contents of
the statement and that all necessary
admissions had been made, the court a quo convicted the accused on 24
April 2012 and sentenced
him the same day to payment of a fine of
R2000,00 or 6 months’ imprisonment, wholly suspended for three
years on certain
conditions.
[3]
After imposition of sentence the court
a quo
’s attention
was drawn to the fact that the imposed sentence was not in accordance
with justice and the matter was consequently
sent to the High Court
on special review.
[4]
The applicable subsection of the
Immigration Act is
subsection
49(1)(a) which reads as follows:
“
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
imprisonment
not exceeding three months
.
”
(emphasis added)
The
imposed sentence is not in accordance with justice and should be
reviewed and set aside.
[5]
The particular offence is prevalent, not only in the Bloemfontein
district, but across the country. Illegal immigrants have
a serious
impact on the country in its economic and socio-economic spheres. A
vast number of illegal immigrants appear frequently
in our courts on
serious charges such as murder and robbery.
[6]
In reconsidering sentence afresh there is no reason to interfere with
the imposed fine. Bearing in mind the prevalence of the
offence and
the consequences on our community, three months’ imprisonment
as an alternative to payment of a fine is justified.
However the
sentence must be wholly suspended to prevent the imposition of a more
severe sentence than the one already imposed.
[7]
Consequently the following orders are made:
1.
The sentence imposed is reviewed, set aside and substituted with the
following:
Payment
of a fine in the amount of R2 000,00 or 3 (three) months’
imprisonment, which is wholly suspended for three years
on condition
that the accused is not convicted of contravening
section 49(1)(a)
of
the
Immigration Act, 13 of 2002
by illegally entering and/or
remaining in the Republic of South Africa committed during the period
of suspension.
2.
The sentence is antedated to 24 April 2012.
______________
J. P. DAFFUE, J
I concur.
___________________
S. P. B. HANCKE, AJP
/eb