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South Africa: Free State High Court, Bloemfontein
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2012
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[2012] ZAFSHC 192
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S v Phemadu (185/2012) [2012] ZAFSHC 192 (18 October 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No. : 185/2012
In
the matter between:-
THE
STATE
and
PIUS
PHEMADU
_____________________________________________________
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 the offence of entering
and/or remaining in the Republic of South Africa in contravention
of
section 49(1)
of the
Immigration Act, 13 of 2002
. He pleaded guilty
and a statement in terms of section 112(2) of the Act was presented
to the court on his behalf by his legal
representative. He was
convicted on 25 April 2012 and the same day sentenced to payment of a
fine of R4 000,00 or 4 months’
imprisonment.
[3]
The presiding magistrate indicated on the charge sheet that the
matter was not reviewable as the accused was represented by
a legal
representative.
[4]
The imposed sentence is indeed not reviewable in the ordinary course
in accordance with the provisions of section 302(1) of
the Act, read
with section 302(3) thereof, insofar as the accused enjoyed legal
representation. The record of proceedings and the
relevant J4 form
were forwarded to the High Court without the customary written
request that the matter be dealt with as a special
review. It was
brought to my attention. It is therefore appropriate that the matter
be dealt with in accordance with the provisions
of section 304(4) of
the Act.
[5]
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
sentence imposed on the accused is not in accordance with justice and
should be reviewed and set aside.
[6]
Ex facie
the record accused’s legal representative
addressed the court in mitigation, but his address was not recorded.
The court
a quo
did not refer to the accused’s personal
circumstances and his ability to pay a fine when sentence was
imposed. Consequently
it is not clear from the transcribed record
whether the accused was in a position to pay a fine and if so, in
which amount. However,
attached to the transcribed record is a
receipt indicating that the accused paid the amount of R4 000,00 in
cash at the cash hall
of the Bloemfontein Magistrate’s Court on
25 April 2012, the date on which he was sentenced. In the
circumstances I deem
it unnecessary to reconsider the fine imposed.
[7]
As the court
a quo
could not impose four months’
imprisonment as an alternative sentence it is necessary to interfere
with this part of the
sentence. 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. There is no reason not to impose, in the
alternative, the maximum
period of imprisonment, being three months.
[8]
Consequently the following orders are made:
8.1
The sentence is reviewed, set aside and substituted with the
following:
Payment
of a fine in the amount of R4 000,00 or three months’
imprisonment.
8.2
The sentence is antedated to 25 April 2012.
______________
J. P. DAFFUE, J
I concur.
___________________
S. P. B. HANCKE, AJP
/eb