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2011
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[2011] ZAFSHC 41
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S v Tofana and Others (73/2011) [2011] ZAFSHC 41 (3 March 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No. : 73/2011
In
the special review between:-
THE
STATE
and
CANIUS TOFANA
…................................................................
Accused
2
MICHAEL NKAMANE
…..........................................................
Accused
3
ISAAC MLAMBO
….................................................................
Accused
4
CORAM:
EBRAHIM, J
et
LEKALE, AJ
_____________________________________________________
JUDGMENT BY:
EBRAHIM, J
DELIVERED ON:
3 MARCH 2011
[1] This matter was
placed before us on special review in terms of subsection 304 of the
Criminal Procedure Act, 51 of 1977
, as amended, with the following
comments from the learned magistrate:
“
Please find
attached abovementioned case to be presented to the Honourable judge
in charge of Review cases for special review for
the following
reasons.
On 17 January 2011, 4 accused persons
appeared before me. Count 1 was put against all 4 accused whilst
count 2 was put only in respect
of accused 2, 3 and 4. They pleaded
guilty accordingly and they were convicted.
Accused 2, 3 and 4 on count 2 were
sentenced to a Fine of R1500 or 6 months imprisonment which were
suspended for 3 years on condition
that they not be convicted of c/s
49 of the Immigration act, 13 of 2002.
However by imposing this sentence, the
sentence jurisdiction was exceeded as
section 49(1)(a)
of Act 13 of
2002 allows a minimum sentence of a fine or 3 months imprisonment.
I respectfully submit that in respect
of accused 2, 3 and 4 on count, 2 the sentence be altered to the
following:
‘
Fined R1000
or 3 months imprisonment suspended in whole for a period of 3 years
on condition the accused not be convicted of contravening
section 49
of Act 13 of 2002, committed during the period of suspension.’”
[2] Having perused the
record of the proceedings, we are satisfied that an irregularity in
sentencing has occurred such that the
proceedings cannot be said to
have been in accordance with justice.
[3] The sentence in
respect of accused 2, 3 and 4 on Count 2 is accordingly set aside. In
its place, a sentence of a fine of R1000,00
or three (3) months
imprisonment suspended in whole for a period of 3 years on condition
the accused not be convicted of contravening
section 49 of Act 13 of
2002, committed during the period of suspension.
_____________
S. EBRAHIM, J
I concur.
______________
L.J. LEKALE, AJ
/sp