IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN
Review Case No: 79/2026
In the matter between:
THE STATE Applicant
and
ISSA JOHN Accused No 1
HAMADI RASHIDI Accused No 3
SULEIMANI HASSAN Accused No 4
MAULIDI MANANDA MHUHOADA Accused No 5
INNOCENT FELIC Accused No 6
Reportable / Not reportable
Coram: Wille J and Anderssen AJ
Heard: 17 March 2026
Delivered: Electronically on 18 March 2026
Summary: Review – s 302 Criminal Procedure Act – sentences corrected
ORDER
Accused No 1 (Issa John)
1. The conviction is confirmed.
2. The sentence is set aside and substituted with the following:
“Accused No 1 is sentenced to ninety (90) days imprisonment
antedated to 24 February 2026.”
3. Accused No 1 shall be deported from the Republic of South Africa after he
has served his sentence.
Accused No 3 (Hamadi Rashidi)
4. The conviction is confirmed.
5. The sentence is set aside and substituted with the following:
“Accused No 3 is sentenced to a fine of R1 000 (one thousand rand)
or thirty (30) days imprisonment wholly suspended for three (3) years
on condition that the accused is not convicted of an offence under
section 49(1)(a) or (b) and/or section 49(14) of Act 13 of 2002 during
the period of the suspension.”
6. The imposition of the suspended sentence shall be antedated to 24
February 2026.
7. Accused No 3 shall be deported from the Republic of South Africa.
Accused No 4 (Suleimani Hassan)
8. The conviction is confirmed.
9. The sentence is set aside and substituted with the following:
“Accused No 4 is sentenced to a fine of R1 000 (one thousand rand)
or thirty (30) days imprisonment wholly suspended for three (3) years
on condition that the accused is not convicted of an off ence under
section 49(1)(a) or (b) and/or section 49(14) of Act 13 of 2002 during
the period of the suspension.”
10. The imposition of the suspended sentence shall be antedated to 24
February 2026.
11. Accused No 4 shall be deported from the Republic of South Africa.
Accused No 5 (Maulidi Mananda Mhuhoada)
12. The conviction is confirmed.
13. The sentence is set aside and substituted with the following:
“Accused No 5 is sentenced to a fine of R1 000 (one thousand rand)
or thirty (30) days imprisonment wholly suspended for three (3) years
on condition that the accused is not convicted of an offence under
section 49(1)(a) or (b) and/or section 49(14) of Act 13 of 2002 during
the period of the suspension.”
14. The imposition of the suspended sentence shall be antedated to 24
February 2026.
15. Accused No 5 shall be deported from the Republic of South Africa.
Accused No 6 (Innocent Felic)
16. The conviction is confirmed.
17. The sentence is set aside and substituted with the following:
“Accused No 6 is sentenced to ninety (90) days imprisonment
antedated to 24 February 2026.”
18. Accused No 6 shall be deported from the Republic of South Africa after he
has served his sentence.
REASONS
Anderssen AJ:
[1] This matter came before the court on review in terms of section 302 of the
Criminal Procedure Act. Section 302(1) reads as follows:
302. Sentences subject to review in the ordinary course
(1) (a) Any sentence imposed by a magistrate’s court—
(i) which, in the case of imprisonment (inclu ding detention in a child and youth
care centre providing a programme contemplated in section 191(2)(j) of the
Children’s Act, 2005 (Act 32 of 2005)), exceeds a period of three months, if
imposed by a judicial officer who has not held the substantive rank of magistrate
or higher for a period of seven years, or which exceeds a period of six months, if
imposed by a judicial officer who has held the substantive rank of magistrate or
higher for a period of seven years or longer;
(ii) which, in the case of a fi ne, exceeds the amount determined by the Minister
from time to time by notice in the Gazette for the respective judicial officers
referred to in subparagraph;
shall be subject in the ordinary course to review by a judge of the provincial or
local division having jurisdiction.
[2] The magistrate who imposed the sentences was appointed as magistrate
on 1 February 2020 and has thus held the rank of magistrate for a period
of less than seven years.
[3] Accused No 1 and No 6 were sentenced to twelve months’ dir ect
imprisonment and Accused No 3, No 4 and No 5 were sentenced to
R3 000 (three thousand rand) or ninety days direct imprisonment on
convictions on the charge of contravening section 49(1)(a) of Act 13/2002
(anyone who enters or remains in, or departs from the Republic in
contravention of th e Immigration Act, shall be guilty of an offence and
liable on conviction to a fine or to imprisonment not exceeding two years).
[4] It appears from the record of proceedings that the accused first appeared
in magistrates’ court on 8 December 2025 and that all of them were in
custody. On 19 December 2025 their application for bail was denied . The
record shows subsequent appea rances on 30 December 2025, 6 January
2026, 7 January 2026, and 9 January 2026. A renewed bail application on
the latter date was also denied. On 30 January 2026 the charges were put
to the five accused and they pleaded guilty. On this date the accused wer e
represented and pleas in terms of section 112(2) of the Criminal
Proceeding Act were handed in and accepted as exhibits. The matter was
postponed for sentencing and eventually came before the magistrate again
on 10 February 2026.
[5] The typed record ref lects that the following mitigating factors were put on
record by the accused’s representative:
No 1: Is not married, 33, 5& 1½, Standard 12, Unemployed.
No 3: Is 29 years, has 2 children 4 & 1. Standard was a Barba.
No 4: He is 29 years old, has a girlfriend. 1 year. He sell fruit.
No 5: Has girlfriend, 2 kids 7 & 4, Grade 7 is a painter, never found guilty.
No 6: Is 32 years. Has girlfriend. She works in a Somalia shop.
Generally: They pleaded guilty was avoided long trial, guilty is a strong mitigating
factor, no violence, Fraud, they are still young has tie (sic) for rehabilitation. Some
has previous convictions.
They are willing to self -deport. Will take one -way flight, he can come legally to
take the children.
S v Baja 2001, Court to propose proportion on Sentence.
They families request a wholly suspended Sentence.
[6] As regards the address from the prosecutor the typed record reflects:
The Courts hands is tide, they have victimize residence of this Country. Where is
the law. They all have previous convictions, they kept children in the Country.
They commit these was a another xxx. The Court must impose Sentences. They
are foreign, the Home Affairs, we don’t know it. The Police have the Home Affairs
may not deport them.
[7] Sentence was handed down on 24 February 2026 and it appears from the
typed record that the magistrate gave the following reasons:
The Court has considered the submissions made by the Defence on a suspended
sentence and a self deportation order where they will pay for own expenses to
travel back to their Country of origin (Tanzania). This was a Noble submission
from defence, which lac ks actual retributive elements. The State argued against
this suggestion and asked the Court to impose an appropriate sentence that will
deter accused from committing similar offence again.
The Court is convinced with the proposal made in a White paper by the Minister
of Home Affairs. Hori: Groenewald which is in line with suggestion made by
Defence. However, this has not gone all the ways through the legislative process.
Imposing an appropriate sentence is no easy task, the Court must consider the
Imposing an appropriate sentence is no easy task, the Court must consider the
triad of Zinn and balance all these factors in terms of the Holder and Malgas
cases.
Accused No 1: John Issa has committed for offence in Richards Bay 2019/03/21,
Mayville (KZN) 19/09/2020 five months later, again on 17/09/2021 Point.
Accused No 3: Hamadie Rashidi Robbery 27/09/2024 Cape Town
Accused No 4: Suleimani Hassan Robbery 10/03/2020 Cape Town
Accused No 5: Maulidi Mananda (Mhuhuada) Theft 06/07/2013 Cape Town
Accused No 6: Innocent Felia Immigration 09/08/2016 Maydon Wharf,
Immigration 07/03/2018 Durban, Immigration 27/06/2018 Maydon Wharf,
Contravening Section 1(1)(a) 18/03/2019 Cape Town
[8] The SAPS69c criminal records reflect that:
[8.1] Accused No 1 was sentenced as follows in respect of his previous
convictions of contravening section 49 of the Immigration Act: (a)
R800 fine or 40 days imprisonment, (b) R1 500 fine or 30 days
imprisonment, (c) R2 500 or 6 months imprisonment wholly
suspended for five years on the condition that he not be convicted
on a similar offence during the period of sus pension (which began
on 2021-10-12).
[8.2] Accused No 6 was sentenced as follows in respect of his previous
convictions of contravening section 49 of the Immigration Act: (a)
cautioned and discharged, (b) 15 days imprisonment, and (c) 30
days imprisonment.
[9] The sentences imposed demonstrate the highly variable nature of the
sentences and the discretion afforded to the court. It also demonstrates
progression in the sentencing in accordance with the Zinn triad – a
foundational South African sentencing pri nciple from S v Zinn (1969)
requiring courts to balance three elements: the crime, the offender, and
the interests of society. It ensures proportional, individualized sentencing
by weighing the offense's severity, the offender's circumstances, and
public interest.
[10] Unfortunately, the sentences handed down by the magistrate in the matter
under review, do not accord with the Zinn triad. In terms of section 49(1)(a)
of the Immigration Act a nyone who enters or remains in, or departs from
the Republic in co ntravention of this Act, shall be guilty of an offence . The
severity of the offence is limited when regard is had to factors such as
violence, premeditation, and cruelty . The magistrate has paid very little
attention to the personal circumstances of the o ffenders in respect of their
age, remorse, previous convictions, and personal background. These
circumstances were not even mentioned in his judgment, which ignored
inter alia the fact that three of the accused had young children. No note
was made on the record as to the circumstances of the children’s mothers
and to what extent the accused are providing for them financially. There is
no indication on the record as to whether the children are living in South
Africa or elsewhere. It appears from the magistr ates’ reasons that he has
over-emphasised the third factor, which a ddresses the need for protection,
deterrence (preventing future crimes), rehabilitation, and retribution (social
outrage).
[11] Section 49(1)(a) provides for a fine or imprisonment not exc eeding two
years. Imposing a R3 000 fine or 90 days’ imprisonment for a first offence
is excessive, particularly when compared to the sentences for Accused No
1 and Accused No 6 in respect of their first offences. The record reflects
that the only amount o f money that the family members of the accused
could scrape together for bail was R500 each. The accused would not be
able to pay a R3 000 fine and would inevitable be imprisoned for 90 days.
In addition, by the time sentence was handed down, they had alre ady
been incarcerated for about 77 days (between at least 8 December 2025
and 24 February 2026) without bail . The sentences should be corrected
and reduced to R1 000 or 30 days wholly suspended for a period of three
years provided that the accused are not convicted for the same, or a
similar, offence during the period of suspension.
[12] As regards Accused No 1 and Accused No 6, they stand convicted for the
fourth time on the same offence. Previous, shorter periods of imprisonment
had not deterred them from committing the same offence. Direct
imprisonment, without the option of a fine, is appropriate but not for a
period of twelve months. In each of their cases the sentences are
corrected to 90 days’ imprisonment.
[13] The order is reflected above.
____________________________
ANDERSSEN J S
Acting Judge of the High Court
I agree and it is so ordered.
____________________________
WILLE D
Judge of the High Court