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South Africa: Free State High Court, Bloemfontein
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[2009] ZAFSHC 60
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S v Daribo [2009] ZAFSHC 60 (21 May 2009)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Review No. : 285/2009
In
the review between:-
THE
STATE
and
YOLANNAYSE
DARIBO
______________________________________________________
CORAM:
VAN
DER MERWE, J
et
JORDAAN,
J
______________________________________________________
JUDGMENT
BY:
JORDAAN
J
______________________________________________________
DELIVERED
ON:
21
MAY 2009
______________________________________________________
[1] In this matter the
accused was charged of contravention of section 37(b) read with
sections 1
,
21
,
22
and
38
of the
Refugees Act no 130 of 1998
and
further read with
section 250
of the
Criminal Procedure Act no 51 of
1977
.
[2] The accused pleaded
guilty and the trial court, in terms of
section 112(1)(a)
of the
Criminal Procedure Act 51 of 1977
convicted the accused accordingly.
[3] The accused was
sentenced to a fine of R500 (five hundred rand) or 30 (thirty) days
imprisonment plus a further 5 (five) months
imprisonment suspended
for 2 (two) years on certain conditions.
[4] The matter was
brought to the attention of this court by an Acting Senior Magistrate
in terms of the provisions of 304(4) of
the
Criminal Procedure Act.
The
honourable Magistrate comments as follows:
â
It is my humble submission that the
sentence is not appropriate and runs counter the provisions of
Section 112(1)(a)
Act 51 of 1977. Under the given circumstance, I
request the Honourable Reviewing Judge to set aside the sentence and
remit the
record back to the Magistrate to impose an appropriate
sentence.â
[5] The remarks of the
said Magistrate is clearly correct in that the additional suspended
sentence of imprisonment remains a sentence
of imprisonment and
therefore falls outside the ambit of Section 112(1)(a) and in
particular contrary to subsection (i) thereof.
The sentence is
therefore not permissible in the circumstances and has to be set
aside.
In the premises the
conviction is confirmed but the sentence is set aside and the matter
referred back to the trial court for the
imposition of an appropriate
sentence.
_______________
A.F. JORDAAN, J
I
agree.
_______________________
C.H.G. VAN DER MERWE,
J
/AM