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[2010] ZAFSHC 131
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S v Moiketsi and Another [2010] ZAFSHC 131 (7 October 2010)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Review Number. : 492/2010
In
review between:-
THE STATE
and
SAKIA MOIKETSI
….......................................................
Case
No. 511/2010
RETHABILE RALIILE
….................................................
Case
No. 510/2010
CORAM:
MOLOI, J
JUDGMENT BY:
MOLOI, J
_______________________________________________________
DELIVERED ON:
07 OCTOBER 2010
JUDGMENT
MOLOI,
J
[1] This is a special
review forwarded to me by the Magistrate, Clocolan.
[2] The two accused, both
citizens of Lesotho appeared separately before the magistrate,
Clocolan on charges of contravening section
49(1) r/w
section 1
,
10
,
25
and
26
of the
Immigration Act No. 13 of 2002
in that they
unlawfully entered the Republic of South Africa without valid
passports or documents authorising them to do so. They
pleaded guilty
and the proceedings were finalised in terms of
section 112
(1) (a) of
the
Criminal Procedure Act 51 of 1977
. The Magistrate, however,
imposed a sentence of Twenty (20) days imprisonment in respect of
each accused.
[3] The proceedings under
section 112
(1) (a) of the Act, however, require that the magistrate
may only;
“
(1)
Impose any competent sentence, other than imprisonment or any other
form of detention without the option of a fine or a fine
exceeding
the amount determined by the Minister from time to time by notice in
the Gazette…”
[4] Clearly the sentence
of Twenty (20) days imprisonment is not in accordance with the law
bearing in mind the provisions of
section 112
(1) (a) of the
Criminal
Procedure Act, 51 of 1977
. As a consequence, I make the following
orders:
4.1 In both cases the
convictions are confirmed.
4.2 The sentence of
Twenty (20) days imprisonment in each case is set aside.
4.3 The sentence of
Twenty Rand (R20.00) or Twenty (20) days imprisonment is substituted
for the sentence in 4.2 above in both cases;
4.4 The sentence in 4.3
above is predated to 23 September 2010;
4.5 The order must be
faxed through to the correctional services facility where the accused
are held forthwith and to the magistrate,
Clocolan, to make the
necessary arrangements for their release when due.
____________
MOLOI, J