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[2008] ZAWCHC 68
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S v Ongom (A291/08) [2008] ZAWCHC 68 (27 November 2008)
IN THE HIGH COURT OF
SOUTH AFRICA
[CAPE
OF GOOD HOPE PROVINCIAL DIVISION]
High
Court Ref. No.:081880
Case
No.: A291/08
Serial
No.: 68/08
In
the matter between:
-
REPORTABLE -
THE
STATE
and
ROBERT
ONGOM
REVIEW
JUDGMENT DELIVERED ON 27 NOVEMBER 2008
LE
GRANGE, J:
[1] This
matter came before me by way of automatic review.
[2] The
accused appeared in the Magistrates Court, Malmesbury, and was
charged with contravening section 49(14) read with
Section 1
of the
Immigration Act, 13 of 2002
.
[3] The
accused enjoyed legal representation, and pleaded guilty. The
accused’ legal representative, in terms of the provisions
of
Section 112
(2) of Act 51 of 1977 handed a written statement which
contain certain admissions, to the Court. The matter was then
postponed
for sentence and at the next appearance the accused
terminated the mandate of his attorney. He then decided to conduct
his own
defence and was sentenced to a term of 18 (eighteen) months
direct imprisonment.
[4] I
had serious doubt whether the accused admitted all the elements of
the crime convicted of and raised my concerns with the
Magistrate. I
also deemed it appropriate to request the opinion of the Director of
Public Prosecution, Western Cape, in this regard.
I wish to thank
the office of the Director of Public Prosecution, in particular Adv
CJ Theunissen, for the comprehensive memorandum
she compiled on such
short notice.
[5] The
provisions of section 49(14) provide as follows:
“Any
person who for the purpose of entering or remaining in, or departing
from, or of facilitating or assisting the entrance
into, residence in
or departure from, the Republic, whether in contravention of this Act
or not, commits any fraudulent act or
makes any false representation
by conduct, statement or otherwise, shall be guilty of an offence and
liable on conviction to a
fine or to imprisonment not exceeding four
years.”
[6] The
sum total of facts, upon which the Magistrate relied to convict the
accused, is recorded as follows in the written statement:
“
I
went to the bank to cash a traveller’s cheque. The officials
realized that there was fault with the cheque, the police
was called
and I was arrested. I informed the police that I was not person who
I declared I was and that the documentation i.e.
the identity
document have I had in my possession to use in order to cash the
cheque was false and that I was not Enock Marelevu
and that I am not
a Malawian national. I admit the following: That I know that my
actions were wrong and punishable in a court
of law that I had the
intention to make a false representation by pretending to be somebody
that was not to remain in the country
that I had no right to consent
to my action”.
[7] The
Magistrate, in his reply stated the following:-
“
I
am of the opinion that although the accused through his lawyer admits
in paragraph 3 of his statement i.t.o Sec 112 (2) of Act
51/1977,
that he committed the fraudulent act, it does not cover in detail how
the fraudulent act to enter or remain in the republic
was committed.
I
will respectfully abide by your decision.”
[8] In
my view, the facts the accused purports to admit in his written
statement, do not pertain to the charge of committing a fraudulent
act to enter, remain or depart, or to facilitate such conduct to
enter, remain or depart from the Republic. It is obvious that
the
admissions of the accused rather relates to an attempt to
fraudulently cash a cheque with a false identity document. It follows
that all elements of the crime, in terms of the charge to which the
accused pleaded guilty to, have not been admitted. The magistrate,
in
my view, should have considered applying the provisions of section
113 of the Criminal procedure Act, 51 of 1977. The conviction
and
sentence is not in accordance with justice and needs to be set aside.
This is also the view expressed in the memorandum of
the Director of
Public Prosecutions.
[9] Before
making the necessary order, I wish to make the following remarks
regarding the written statement drafted by the attorney
on behalf of
the accused. Firstly, the statement was not signed by the accused.
Secondly, certain words were deleted. Thirdly,
certain paragraphs
were altered and the handwriting became difficult to read. The
deletions and alterations done were also not
initialled by the
accused. I find it surprising that the Magistrate, who is an
experienced judicial officer, allowed the attorney
the latitude to
hand in such a document in a Court of Law. The statement manifests a
job done in haste, with no attention to detail.
[10]
I fully appreciate the enormous challenges Judicial Officers in Lower
Courts face on a daily basis but this type of laxity
by legal
practitioners, borders on contempt for the judicial process. Judicial
Officers should refuse to accept such poor drafting
of documents as
it leads to a general disintegration of proper practice in the Lower
Courts that impacts negatively on the administration
of justice and
should not be condoned.
[11] Returning
to the order, I have given due consideration to the possibility of
remitting the matter to the Magistrate in order
to deal with it in
accordance with the law. The accused is however a 37 year old first
offender and a university graduate who has
been displaced in his
country of origin due to continuous arm conflict. He has already
served a period of imprisonment. I am of
the view that it will not be
in the interest of justice, in this instance, having regard to the
facts of this matter, to remit
it to the Presiding Magistrate. A
different approach by the relevant Authorities may perhaps be
appropriate in these circumstances.
[12] In
the result, the following order is made:-
The
conviction and sentence is set aside. The record is herewith returned
to the Magistrate’s Office.
____________________
LE
GRANGE, J
I agree. It is so ordered.
____________________
NC
ERASMUS, J