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[2011] ZAFSHC 159
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S v Rakhongoana and Others (350/2011) [2011] ZAFSHC 159 (22 September 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No.: 350/2011
In the review of:
THE STATE
and
KEBITSAMANG
RAKHONGOANA & 7 OTHERS
_____________________________________________________
CORAM:
EBRAHIM, J
et
KUBUSHI, AJ
JUDGEMENT:
EBRAHIM, J
_____________________________________________________
DELIVERED ON:
22 SEPTEMBER 2011
_____________________________________________________
SPECIAL REVIEW
_____________________________________________________
[1] Accused 1 – 7
were charged in the Magistrate Court at Welkom, with one count each
of:
Contravening Section
49(1)(a) of the Immigration Act, 2002 (Act no: 13 of 2002) (Count 1)
and
Contravening the
provisions of Section 1(1) of the Trespass Act of 1959 (Act 6 of
1959) (Count 2).
The charges read as
follows:
Count 1:
That the accused is
guilty of the offence of contravening section 49(1)(a) read with
sections 1(1), 9 through to and including 25
of the Immigration Act
2002 (Act No 13 of 2002).
Whereas at all times
relevant to the charge:
The accused remained in
Republic at [
here insert place
]
Now therefore upon (or
about)
19/07/2011
and at or near
ST HELENA GOLD
MINE.
In the District/Division
of
Welkom
the accused unlawfully entered, remained in
the Republic in contravention of this Act, by
Remaining in the
country without valid documents
and thereby committed an
offence.
Count 2:
That the accused are
guilty of the crime of contravening the provisions of Section 1(1)
read with Sections 1(1A), 1(2) and 2 of
Trespass Act of 1959 and
further read with
Section 250(1)(d)
of the
Criminal Procedure Act 51
of 1977
– Trespassing.
In that upon or about the
19 August 2011
and at or near
St Helena Gold
Mine/Charles Warker
(a)
the lawful
occupier of any land or any building or part of any building, to wit
Gold Plant
Enter or were upon the
said land or in such building of part of the said building.
[2] All the accused
pleaded guilty to count 2 and accused 1 to 7 similarly pleaded guilty
to count 1. Accused 1 to 7 tendered a
combined plea statement in
terms of
section 112(2)
in respect of both charges and accused no 8
also did the same in respect of the trespass charge in lieu of
conducting an enquiry
in terms of
section 112(1)(b).
The learned
magistrate convicted all the accused on the basis of their plea
statements.
[3] In passing sentence,
the learned magistrate overlooked the penal provisions of the
Immigration Act 2002
as contained in
section 49(1)(a)
by imposing a
sentence in excess of her punitive jurisdiction to wit R2000 or 6
months imprisonment.
Section 49(1)(a
) provides:
“
Section
49
(1)
(a)
Anyone who enters or
remains in the Republic in contravention of this Act shall be guilty
of an offence and liable on conviction
to a fine or to imprisonment
not exceeding three months.”
[4] According to
submissions accompanying her request for Special Review proceedings
to be instituted the learned magistrate explained
that her intention
was to impose the sentence she imposed in respect of count 1, on all
the accused in respect of the trespass
conviction but inadvertently
swopped the sentences around. The sentence she imposed on the
trespass charge was meant to be imposed
in respect of the conviction
of illegal Immigration.
[5] An irregularity in
the sentencing options exercised by the learned magistrate has thus
occurred rendering the proceedings as
one not conducted in accordance
with justice.
[6] The sentences in
respect of both counts are thus set aside and replaced with the
following order:
6.1 The convictions on
count 1 in respect of accused 1 to 7 are confirmed.
6.2 Accused 1 to 7 are
each sentenced to pay a fine of R1 000 or undergo 3 months
imprisonment.
6.3 The conviction of all
the accused on count 2 is confirmed.
6.3 Each of the accused 1
to 8 is sentenced to pay a fine of R2 000,00 or undergo 6 months
imprisonment.
_____________
S. EBRAHIM, J
I
concur.
__________________
E. M. KUBUSHI, AJ
/eb