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South Africa: Free State High Court, Bloemfontein
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2008
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[2008] ZAFSHC 114
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S v Elshazly (535/2008) [2008] ZAFSHC 114 (25 September 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Special
Review
No. : 535/2008
In
the review between:-
THE
STATE
versus
A ELSHAZLY
_____________________________________________________
CORAM:
RAMPAI,
J
et
MOCUMIE,
J
JUDGMENT
BY:
MOCUMIE,
J
_____________________________________________________
DELIVERED
ON:
25
SEPTEMBER 2008
_____________________________________________________
SPECIAL
REVIEW
JUDGMENT
_____________________________________________________
1. The accused was
charged with contravention of section 49(1)(a) read with section 29
(1)(f) of the Immigration Act 13 of 2002
(
“the
Immigration Act”
)
(possession of a falsified permanent residence permit) in the
Magistrate court, Ficksburg. He was convicted as charged and the
presiding officer’s sentence is recorded as follows:
“2(two)
years imprisonment wholly suspended for 5 years on condition that
during the period of suspension the accused is not
convicted of
contravention of section 49(1)(a) read with section 29(1)(f) Act
13/2002 committed during the period of suspension.”
He was legally
represented during the trial.
2. The presiding officer
who dealt with this matter sent this case on special review in terms
of section 304 of the Criminal Procedure
Act 51 of 1977 (
“the
CPA”
)
because he was of the view that although the accused was correctly
convicted of c/s 49(1) of the
Immigration Act the
sentence imposed
was incompetent. The penalty prescribed by the
Immigration Act for
this offence is a fine or imprisonment not exceeding three months.
3. The accused pleaded
guilty and tendered a statement in terms of
section 112(2)
of the CPA
through his legal representative. He admitted all the elements of
the offence preferred against him adequately. The
presiding officer
correctly convicted the accused as charged. There are no grounds to
justify a conclusion that the proceedings
were not in accordance with
justice.
4. I now turn to the
sentence imposed which is the subject-matter of the special review.
The sentence imposed by the presiding
officer can only be faulted in
that it is indeed incompetent. The sentence ought to be set aside and
substituted with the correct
one.
In the circumstances I
make the following order:
ORDER
The conviction by the
presiding officer in this matter is confirmed.
The sentence imposed
by the presiding officer is altered to read as follows:
“
R600.00(six
hundred rand) or 3(three) months imprisonment wholly suspended for 5
years on condition that the accused is not convicted
of c/s 49(1)(a)
read with
section 29(1)(f)
of the
Immigration Act 13 of 2002
committed during the period of suspension.”
_________________
B. C. MOCUMIE, J
I concur.
_________________
M. H. RAMPAI, J