REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION , POLOKWANE
REPORT ABLE: YES/NO (1)
(2)
(3)
OF INTEREST TO THE JUDGES: YES/NO
REVISED.
~
G.C MULLER
------ e
In the matter between:
THE STATE
and
SANDRA MUDZIMURE
LAMILAMO LEMO EROSE
MULLER J :
JUDGMENT
CASE NO: REV 44/26
CASE NO: REV 43/26
2
[1] Two matters were submitted for automatic review. The magistrate was requested to
explain whether the procedure requiring the accused to confirm his plea of guilty under oath
in the case of S v Eroso (Case No A 19/26) is prescribed by the Criminal Procedure Act, 1
and to explain why a different procedure was followed in case S v Mudzimunye (Case
A29/268) . The magistrate responded that section 112(3) was applied in the former case
and that section 112(1 )(a) of the CPA was applied, in the latter.
STATE v EROSO (Case No A19/26)
[2] The accused was charged with contravening section 9(3)(a) of the Immigration Act2
in that he on 15 January 2026 unlawfully entered or departed from the Republic without
being in possession of a valid passport by entering and remaining in the Republic of South
Africa without valid documentation issued by the Department of Home Affairs. The accused
who speaks Amharic was assisted by an interpreter elected to conduct his own defence.
He tendered a plea of guilty. He was duly sworn in following his plea and questioned by the
magistrate, as if section 112(1)(b) of the CPA had been invoked.
[3] The papers were submitted to the Deputy Director of Public Prosecutions;
Polokwane for an opinion. It is pointed out in a helpful memorandum that the charge that
has been preferred against the accused was inappropriate to the situation and that the
magistrate ought to have invoked section 113 when he was confronted with the affidavit of
the immigration officer.
1 Act 51 of 1977. (Hereinafter "the CPA").
2 Act 13 of 2002. Section 9(3)(a) reads: "No person shall enter or depart from the Republic -(a) unless he or
she is in possess ion of a valid passport, and in the case of a minor, has his or her own valid passport."
3
(4] The first question to be answered is whether it is permissible for a presiding officer to
invoke section 112(3) instead of following section 112(1)(b). Put differently; is a presiding
officer empowered in the exercise of his/her discretion to invoke section 112(3) instead of
section 112(1)(a) or (b) following a plea of guilty by the accused. Section 112(1) provides:
"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 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 of 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 and -
(i) impose any competent sentence, other than imprisonment or any other form
of detention without the option of a fine or of a fine exceeding the amount
determined by the Minister from time to time by notice in the Gazette; or
(ii) deal with the accused otherwise in accordance with law.
(b) the presiding judge, regional magistrate or magistrate shall, if he or she is of the opinion
that the offence merits punishment of imprisonment or any other form of detention without
the option of a fine or of a fine exceeding the amount determined by the Minister from
time to time by notice in the Gazette, or if requested thereto by the prosecutor, question
the accused with reference to the alleged facts of the case in order to ascertain whether
he or she admits the allegations in the charge to which he or she has pleaded guilty, and
may, if satisfied that the accused is guilty of the offence to which he or she has pleaded
guilty, convict the accused on his or her plea of guilty of that offence and impose any
guilty, convict the accused on his or her plea of guilty of that offence and impose any
competent sentence.
4
(2) If an accused or his legal adviser hands a written statement by the accused into court, in
which the accused sets out the facts which he admits and on which he has pleaded
guilty, the court may, in lieu of questioning the accused under subsection (1 )(b}, convict
the accused on the strength of such statement and sentence him as provided in the said
subsection if the court is satisfied that the accused is guilty of the offence to which he
has pleaded guilty: Provided that the court may in its discretion put any question to the
accused in order to clarify any matter raised in the statement.
(3) Nothing in this section shall prevent the prosecutor from presenting evidence on any
aspect of the charge, or the court from hearing evidence, including evidence or a
statement by or on behalf of the accused, with regard to sentence, or from questioning
the accused on any aspect of the case for purposes of determining an appropriate
sentence."
[5] Section 112 allows a presiding officer to make a choice whether to invoke
subsection (1)(a) or (1)(b) when an accused tendered a plea of guilty. Subsection (1)(a),
instead of subsection (1)(b), may only be followed if the magistrate is of the opinion that the
offence is minor and that a fine, the maximum of which determined by the Minister, will be
imposed.3
[6] Subsection (2) underscores that a written statement of the accused may be handed
into court in lieu of being questioned. Neither section 112(1 )(b) nor section 112(2) requires
that the questioning by the magistrate or a statement handed in by the legal representative
be under oath. There is nothing in the wording of section 112(3) that empowers a presiding
officer to ignore the provisions of subsection (1 )(b) and to question an accused under oath
to determine his guilt. The purpose of the provision has given rise to different
interpretations in the past.
3
S v Kholoane 2012(1) SACR 8 (FB) par 6-7; S v Rasena 2017(1) SACR 565 (ECG) par 10-11 .
5
[7] The magistrate failed to refer to any authority when requested to explain if such a
procedure is prescribed by the CPA, except to state that he applied section 112(3). Instead
of dealing fully with the query to justify the procedure that was followed, a cursory and
unhelpful reply was provided.
[8] Section 112(3) allows for the prosecutor to present evidence on any aspect of the
charge. 4 In Khumalo v State and Another, 5 Milne J stated that:
"In my view, however, the words in question make it quite clear that it is only "on any aspect of
the charge" in ss (3) that the prosecutor may lead evidence with regard to sentence: for example
it would not be open to him to lead evidence as to the prevalence or otherwise of the offence in
question. The words are words of restriction which limit the range of evidence which the
prosecutor can lead with regard to sentence. The court is not restricted at all in this regard and
can hear generally with regard to sentence."
[9] However, in S v Phudula; S v Mazibulo; Sv Niewoudt, 6 a full court of the Transvaal
adopted a contrary view. It stated:
"Dit word nou verwag dat die regterlike beampte horn moet tevrede stel dat die beskuldigde
bedoel het om skuldig te pleit en dat hy werklik die misdryf gepleeg het waaraan hy skuldig
gepleit het voordat hy die beskuldigde kan skuldig bevind. Hy kan horn tevrede stel deur
ondervraging van die beskuldigde of met 'n skriftelike verklaring deur die beskuldigde in terme
van sub-art (2). Dit staan die aanklaer ook vry om getuienis oor enige aspek van die aanklag
voor te le. Dit staan die beskuldigde vry om self getuienis af te le om die regterlike beampte
tevrede te stel dat hy die misdryf inderdaad gepleeg het. Daar bestaan geen logiese rede
4 My emphasis.
5
1978 (4) SA 516 (N) 519E-F; S v Sikhindi 1978 (1) SA 1072 (N) 1072H-1073A.
6 1978 (4) SA 855 (T) 860F-H.
6
waarom sodanige verklaring, of getuienis van 'n beskuldigde, juis deur 'n proses van
ondervraging voor die hot se aandag moet kom nie."7
[8] The full court of the Northern Cape in S v Balepile, 8 concluded that:
"Die oogmerk van die sub-artikel is oordeelkundige strafoplegging. lndien arts 112 en 113
saamgelees word, meen ek dat dit duidelik is dat die wetgewer nie 'n gemengde proses van
ondervraging en aanhoor van getuienis voor skuldig bevinding, wat volg op 'n pleit van skuldig,
beoog het nie.
Art 112(3) is nie geskep, om waar ondervraging nie voldoende gegewens openbaar om 'n
skuldigbevinding te regverdig, die gegewens met getuienis te laat aanvul nie."
[9] The Court in S v Swarts, 9 followed S v Balepile, supra and held:
"Dit gebeur soms dat by ondervraging 'n beskuldigde niks bydra tot die landdros se kennis van
wat werklik gebeur het nie, hoewel dit duidelik is dat hy "die bewerings in die aanklag waarop hy
skuldig gepleit het erken". Daar is niks wat dan (of inderdaad in enige geval) verhoed dat die
aanklaer die lee raam invul met getuienis vir doeleindes van vonnisbepaling nie. Hy vul dan met
ander woorde slegs die beskuldigde se erkennings soos hulle aangeteken is met detail aan.
lndien die beskuldigde tydens ondervraging verder gaan as om slegs die bewerings in die
aanklag te erken - wat hopelik merendeels die geval sal wees, sy antwoorde moet nie slegs
neerkom op n herhaling van sy pleit van skuldig nie - is dit die aanklaer se plig om 'n keuse uit te
oefen .... waaraan hy na my mening gebonde is. Hy mag nog steeds die beskuldigde se
weergawe aanvul, maar nie in wesenlike opsigte weerspreek nie. lndien hy wil weerspreek moet
dit geskied voor skuldigbevinding en nadat hy te kenne gegee het dat dit sy keuse is, en 'n pleit
van onskuldig aangeteken is."
7 S v Witbooi 1978 (3) SA 590 (T) 5H-595A; S v Quinta 1979 (2) SA 326 (0) 328A rejected Khumalo v S and
Another supra.
8 1979 (1) SA 704 (NC) 705F-H.
9 1983 (3) SA 263 (C) 262H-263B.
7
[1 OJ I am inclined to agree with the approach espoused in Sv Balepile and s v Swarts. If
an accused does not admit all the allegations in the charge preferred against him, a plea of
not guilty should be entered.
[11] Section 274(1) provides that a court may receive such evidence as it thinks fit to
inform itself as to the proper sentence to be imposed before passing sentence. It seems to
me that where a court applied section 112(1)(b) or 112(2), both section 112(3) and section
274 can serve the same purpose. Evidence in aggravation of sentence in terms of section
27 4 may be tendered by the prosecution to supplement the version of the accused to put
the court in a position to determine the appropriateness of a sentence, but such evidence
should not contradict the version of the accused, which was accepted by the prosecutor at
the section 112 procedure, as it may led to a dispute and a plea not guilty being entered.
[12] It bears no special notice that the provisions of section 113 provide an important
safety mechanism. It is available to a court, at any stage of the proceedings under section
112(1)(a) or (1)(b) or 112(2), before sentence is imposed, to enter a plea of not guilty and
to require the prosecutor to proceed with the prosecution, if the court is in doubt whether
the accused is in law guilty of the offence to which he had pleaded guilty.
[13] The magistrate invited the accused after the oath was administered when
questioned to tell the court when he entered the country illegally. The accused responded
that he entered the country legally in 2016, with a valid passport at Musina. He stated that
he applied for asylum prior to lock-down in 2020. He was able on previous occasions to
renew his permit (visa) on line but the last application was unsuccessful. He stated that he
tried to apply for a renewal but his permit expired on 5 January 2026, and that he remained
8
illegally in the country, since that date despite his continued efforts to obtain a permit. He
confirmed that asylum has not been granted.
[14] At the end of the questioning of the accused the prosecutor indicated that the plea of
guilty is accepted by the prosecution. The magistrate afforded the prosecutor the
opportunity to cross-examine the accused. He elected not to put questions to the accused.
[15] In my view, magistrate and the prosecutor misconceived the offence that the
accused was charged with. Section 9(3)(a) prohibits anyone from entering into or departing
from this country without a valid passport. Despite the clear and unambiguous language of
the section 9(3)(a) the charge-sheet alleged that the accused entered and remained in the
Republic of South Africa without a valid passport and without documentation issued by the
Department of Home Affairs.
[16] The accused informed the court that he entered the country legally. He explained
that he was issued with temporary asylum seekers visa issued in terms of section 22 of the
Refugees Act.10(A copy of the document was handed in by the prosecution).
[17] Section 21 (4) of the Refugees Act provides that notwithstanding any law to the
contrary, no proceedings may be instituted or continued against any person in respect of
his or her unlawful entry into or presence within the Republic, if that person applied for
asylum until a decision has been made or his rights of review or appeal have been
exhausted. An asylum seeker is protected by the principle of non-refoulment until the claim
10 Act 130 of 1998.
9
of the asylum seeker has been rejected after the procedure that has been followed has
been exhausted.11
[18) The magistrate stated in the judgment:
"Having heard the charge preferred against you, which you confirm that you understand and you
tendered a guilty plea under oath and the State accepted your plea, I hereby find you guilty in
terms of section 49(1)(a) of the Immigration Act in that you have entered and remained in South
Africa illegally."
[19] The accused did not admit all the elements of the offence charged. The magistrate
ought to have invoked section 113 and entered a plea of not guilty at the conclusion of the
section 112 proceedings stage. He misdirected himself that the accused admitted all the
allegations in the charge-sheet.
[20) However, after the accused testified in mitigation, the prosecutor handed in a copy of
an asylum seeker temporary visa issued in respect of the accused on 4 January 2025. The
visa expired ex facie the document on 5 January 2026. The prosecutor also handed in an
affidavit in terms of section 212 of the CPA of the immigration officer stationed at Tzaneen
who inter a/ia stated that:
5. According to our Departmental records Mr Lerno Erose Lamilamo's Asylum Seeker Temporary
VISA does not exist, system record attached for reference.
6. Mr Lerno Erose Lamilamo remained in the country legally.
7. Therefore, he is legal in the country."
11
Ruta v Minister of Home Affairs 2019 (2) SA 329 (CC) par 29; Scalabrini Centre of Cape Town and Another
v Minister of Home Affairs and Others 2024 (3) SA 330 (CC) para 35.
IO
[21] The magistrate accepted that the accused was arrested days after his asylum permit
expired and that he had tried to renew it. Although paragraph 5 of said affidavit is
ambiguous and prima facie contradictory to paragraph 6, it nevertheless confirmed his
explanation that he is in the country lawfully. The magistrate reasoned since the accused is
not in possession of papers validating his stay, that he is illegally in this country.
[22] The contradictions in the affidavit are such that they did not support the version of
the accused that he entered the country unlawfully which was accepted by the prosecutor.
The magistrate, ought to have entered a plea of not guilty before the sentence was
pronounced, even on the assumption that the conviction was in order.
[23] The accused was sentenced to:
30 days imprisonment wholly suspended for 5 years on condition that the accused is not found
guilty of the same offence.
[24] The suspended portion of the sentence is inadequately worded and does not state
that the accused should not be convicted of the same offence committed during the period
of suspension.
[25] It follows that the conviction and sentence cannot remain.
STATE v MUDZUMURE (Case A29/26B)
[26] The accused was also charged with contravening section 9(3)(a) of the Immigration
Act. She was arrested on 3 February 2026. She pleaded guilty on the date of her first
appearance in court. Attached to the charge-sheet is a form with the heading "FIRST
APPEARANCE". The document makes provision for the magistrate to determine that the
identity of the accused is confirmed together with the age of the accused. The form makes
I I
also provision for the accused to be appraised of his/her right to legal representation and
the right to a postponement to prepare and sight of the contents of the police docket. It
provides for a space where the magistrate is to record in manuscript if the accused
understood his/her rights and a space to also record what the election of the accused is
with respect to legal representation. There is no objection against the use of the document
provided it records what the election was. In the present case those spaces were left blank
by the magistrate. In addition, the record of the proceedings does not indicate that the
accused was informed of her right to legal representation. Ex facie the record of the
proceedings the right to legal representation has not been explained. The magistrate stated
that her rights were explained. The record does not bear out his explanation.
(27] The magistrate applied section 112(1 )(a) of the CPA. Recently, this court in S v
Washington Mafuna and Others, 12 held that section 112(1 )(b) should be applied in respect
of offences committed in terms of the Immigration Act.
(28] The rights of the accused to testify in respect of mitigation was not explained to her.
She is 20 years old, according to the charge-sheet with a child of 2 years who is staying
with her parents at Soekmekaar. The accused was undefended and unsophisticated. More is
required from a presiding officer when an accused is undefended. It is a cause for follow-up
questions to determine whether her parents are illegal foreigners and if she is not lawfully in
the country or whether she was not perhaps born in this country.
(29] The accused was sentenced to:
"4 months imprisonment or R2000 fine wholly suspended for 5 years."
12 Unreported Judgment dated 27 March 2026. (Case Rev15/2029) par 29.
12
[25] The suspended sentence imposed is totally inappropriately worded in that the
sentence contained no condition of suspension.
[26] The circumstances are such that in this case, too, the conviction and sentence
cannot also stand.
ORDER
STATE v EROSO (Case No A19/26)
1.The conviction and sentence are set aside.
STATE v MUDZUMURE (Case A29/26B)
2.The conviction and sentence are set aside.
I, concur
13
,,,,,--,
G.CM ~ /
JUDGE OF THE HIGH COURT
LIMPOPO DIVISION, POLOKWANE
K. PILLAY
JUDGE OF THE HIGH COURT
LIMPOPO DIVISION, POLOKWANE