S v Ramaketekete (54/2009) [2009] ZAFSHC 13 (12 February 2009)

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[2009] ZAFSHC 13
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S v Ramaketekete (54/2009) [2009] ZAFSHC 13 (12 February 2009)

IN
THE HIGH COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Special
Review
No. : 54/2009
In
the special review between:
THE
STATE
versus
ALPHONCY
MOKITJIMA RAMAKETEKETE
_____________________________________________________
CORAM:
MOLEMELA,
J
et
MOLOI, AJ
JUDGMENT
BY:
K.J.
MOLOI, AJ
DELIVERED
ON:
12
FEBRUARY 2009
[1]
This
matter came before me on review in terms of section 304(4) of the
Criminal Procedure Act, No. 51 of 1977 (the CPA). The accused

pleaded guilty in the magistrate’s court of contravention of
section 49(1)(a)
of the
Immigration Act, No. 13 of 2002
in that the
accused, being a Lesotho citizen, entered and remained in the
Republic of South Africa without a valid passport nor
a valid permit
authorising him thereto.
[2] The
accused pleaded guilty and the prosecutor accepted the plea and the
magistrate dealt with the matter in terms of
section 112(1)(a)(i)
of
the CPA but imposed a sentence of three (3) months imprisonment which
was wholly suspended for a period of three (3) years conditionally.
Section 112(1)(a)(i)
states as follows:
“Where
an accused at a summary trial in any court pleads guilty to the
offence charged, or to an offence of which he may be convicted
on the
charge and the prosecutor accepts that plea –
(a) the presiding
judge, regional magistrate
or the magistrate may, if he or she is of the opinion that the
offence does not merit punishment of 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, convict the accused in respect of the offence to which he or
she has pleaded guilty on his or her plea of guilty
only and -
(i) 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.”
(My
emphasis.)
[3] On
realising that where the matter is treated in terms of
section
112(1)(a)
and an incompetent sentence of three months imprisonment
had been imposed, albeit wholly suspended, the magistrate referred
the
matter to this court for rectification. The present amount
determined by the Minister is R1 500,00. See GN239 in Government
Gazette
24393 dated 14 February 1997. The magistrate suggested that
the sentence be altered to a fine of R1 500,00 or imprisonment for
a
period of three (3) months wholly suspended for a period of three (3)
years on condition the accused is not convicted of contravention
of
section 49(1)(a)
of Act 13 of 2002 committed during the period of
suspension.
[4] The
magistrate is correct in suggesting the alteration of the sentence as
indicated.
[5] As a consequence the
following order is made:
5.1 The conviction on
the charge of contravening section 49(1)(a) of Act No. 13 of 2002 is
confirmed.
5.2 The sentence imposed
by the magistrate is hereby set aside.
5.3 The
accused is sentenced to a fine of R1 500,00 or three (3) months
imprisonment which is wholly suspended for a period of
three (3)
years on condition that the accused is not found guilty of
contravening section 49(1)(a) of Act 13 of 2002 committed
during the
period of suspension.
_____________
K.J.
MOLOI, A
J
I concur.
_________________
M.B. MOLEMELA, J
/
sp