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[2026] ZAGPJHC 887
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S v Aihua (R62/2025; R63/2025; R64/2025) [2026] ZAGPJHC 887 (30 July 2026)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
REVIEW NO: R62/2025
ON THE
JULY 2026
BEFORE THE HONOURABLE
ACTING JUDGE NEMAVHIDI
In the matter between:
THE
STATE
APPLICANT
And
WENG
AIHUA
RESPONDENT
REVIEW
NO: R63/2025
THE
STATE
APPLICANT
And
SABBIR AHMED YUSUF
VADIA
RESPONDENT
REVIEW
NO: R64/2025
THE
STATE
APPLICANT
And
WANDERA
ABRAHAMAN
RESPONDENT
SPECIAL REVIEW ORDER
NEMAVHIDI
AJ:
[1] These three matters
were referred to this Court for special review in terms of
section
302
of the
Criminal Procedure Act 51 of 1977
. The accused persons in
each matter pleaded guilty to contravening section 49(1)(a) of the
Immigration Act 13 of 2002 (“the
Immigration Act&rdquo
;), which
criminalises remaining in the Republic of South Africa without a
valid visa or permit.
[2] The sentences imposed
by the District Magistrate’s Court were as follows:
Case No.
Accused
Sentence
R62/2025
Mr Aihua Weng
Cautioned and discharged
R63/2025
Mr Sabbir Ahmed Yusuf Vadia Cautioned and discharged
R64/2025
Mr Wandera Abrahaman
R1 000 or
12-months imprisonment,
wholly suspended for 5
years on condition the accused is not convicted of contravening
section 49
of Act 13 of 2002 during the period of suspension
[3] Upon reviewing the
record, I noted that a query was directed to the learned magistrate
regarding the competence of these sentences,
particularly in light of
section 34
of the
Immigration Act, which
mandates the deportation of
illegal foreigners. The magistrate’s response, regrettably, did
not provide a satisfactory justification
for the sentences imposed.
This judgment therefore considers whether these sentences are
competent and accord with the legislative
framework governing illegal
foreigners in this country. It is not clear how the Presiding
Magistrate exercised his judicial discretion
as in all matters before
the review court, there were no reasons for sentencing given.
[4] It is not clear why
the Presiding Magistrate also failed to make an order of deportation
when in S v Weng Aihua the accused
asked for an order for her
deportation. She wanted to go back home.
[5] The same can be said
in S v Sabbir Ahmed Jususf Vadia matter where the defence attorney,
on behalf of the accused, also stated
that the accused wants to go
back to his place of origin.
THE LEGISLATIVE SCHEME
[6] To determine the
competence of these sentences, it is necessary to understand the
architecture of the
Immigration Act. The
Act distinguishes between
two distinct but interrelated consequences for illegal foreigners:
criminal punishment under section
49 and deportation under section
34.
[7]
Section 34(1)
of the
Immigration Act provides
:
“
Without
the need for a warrant, an immigration officer may arrest an illegal
foreigner or cause him or her to be arrested, and shall,
irrespective
of whether such foreigner is arrested, deport him or her or cause him
or her to be deported and may, pending his or
her deportation, detain
him or her…”
The use of the word
“shall” imposes a mandatory duty. Deportation is not
discretionary. It is the inevitable and non-negotiable
consequence
for any person found to be an illegal foreigner.
[8]
In the unreported case of Luis Cuna v State
[1]
the judge found, in paragraph 3/1/6 that
Section 49(1)(a)
creates a
separate criminal offence:
"The immigration Act
provides that a person who has contravened section 49(1) therefore
shall, on conviction, be liable to
a fine or to imprisonment not
exceeding two years. It is our view that once an accused has been
found guilty in terms of section
49(1) and sentenced either to a fine
or imprisonment, the trial court must in addition make an order for
her or his deportation.
And in every case where an order for the
deportation of an illegal foreigner has been made, the judgement must
be brought to the
attention of al/ the Department of Government that
deal or are entrusted with the deportation of illegal foreigners and
all other
institutions in the value chain."
[9] The relationship
between these provisions is clarified by section 34(6):
“
Any
illegal foreigner convicted and sentenced under this Act may be
deported before the expiration of his or her sentence and his
or her
imprisonment shall terminate at that time.”
This provision reveals
Parliament’s clear intention that deportation takes precedence
over criminal punishment. The criminal
sentence—whether a fine
or imprisonment—serves as a mechanism that, once served or
paid, triggers the deportation process.
It also permits deportation
to occur even before the completion of a criminal sentence,
demonstrating that immigration control
objectives are paramount.
[10] In a Parliamentary
response dated April 2024, the Minister of Home Affairs confirmed the
government’s interpretation:
“
If
found guilty, and upon serving a sentence of imprisonment or paying a
fine, the deportation would be processed within 48 hours
of release
by an Immigration Officer. In instances where this was not possible
within the stipulated timeframe, the illegal immigrant
would be
issued with an Order to Leave the Country and thus self-deport.”
This statement reinforces
that deportation is the primary consequence, and the criminal
sentence is a vehicle to facilitate that
outcome.
THE INCOMPETENCE OF THE
IMPUGNED SENTENCES
[11] The central question
is whether the sentences imposed by the magistrate give effect to the
mandatory deportation requirement
in section 34. I find that they do
not. The sentences are fundamentally incompetent for the reasons set
out below.
Caution and Discharge
(R62/2025 and R63/2025).
[12] A caution and
discharge, in terms of
section 297(1)(a)
of the
Criminal Procedure
Act, results
in the accused being released without any punishment
being imposed. No fine is paid. No imprisonment is served. There is
accordingly
no trigger event that would enable the Department of Home
Affairs to effect deportation under
section 34(6).
[13] The effect of such a
sentence is to release an admitted illegal foreigner into the
Republic with no consequence whatsoever
for the offence committed.
This subverts the clear legislative intent that illegal foreigners
must be deported. It renders
section 34
meaningless and undermines
the State’s ability to enforce immigration laws.
Wholly Suspended Sentence
(R64/2025).
[14] The sentence imposed
on Mr Abrahaman—a fine of R1 000.00 or 12-months
imprisonment, wholly suspended for five years—creates
the same
practical problem. Because the sentence is suspended, the accused
pays no fine and serves no imprisonment. There is no
release from
imprisonment or payment of a fine that would trigger the 48-hour
deportation window contemplated by the Department
of Home Affairs.
[15] The suspension of
the sentence for a period of five years effectively grants the
accused a further five years of lawful presence
in the Republic,
subject only to not reoffending. This is antithetical to
section 34
,
which mandates immediate deportation. The magistrate, in imposing
such a sentence, usurped the function of the Department of Home
Affairs by effectively granting the accused permission to remain—a
power the Department alone possesses under section 8 of
the Act.
STARE DECISIS AND THE
DUTY OF MAGISTRATES
[16]
Magistrates’ courts are bound by the principle of stare decisis
to follow the interpretation of legislation established
by higher
courts. The Constitutional Court has addressed the constitutional
framework of immigration enforcement in several judgments,
including
Lawyers
for Human Rights v Minister of Home Affairs
and
Ex
parte Minister of Home Affairs
[2]
and
Another
v Lawyers for Human Rights
.
[3]
While these cases focused on detention, they confirm that the
Immigration Act must
be interpreted holistically, with
section 34
as
the central mechanism for dealing with illegal foreigner. The court
found the magistrate’s explanation unhelpful and set
aside both
conviction and sentence. That case underscores the supervisory role
of the High Court in ensuring that magistrates comply
with the
legislative framework when sentencing under the
Immigration Act.
[17
] The principle of
stare decisis requires magistrates to follow the legislative scheme
as interpreted by the higher courts. The
sentences in these three
matters demonstrate a failure to do so. Magistrates sentencing
illegal foreigners under
section 49
must structure sentences that
facilitate, rather than obstruct, the mandatory deportation required
by
section 34.
[18]
The Gauteng Local Division of the High Court also recently followed
its earlier decisions on 12 June 2026. In the unreported
matter of
S
v Lerato David Sekike
[4]
when the Honourable Dosio J, after convicting the accused for
contravention of
section 49(1)
, made an order in terms of
section
32(2)
of the
Immigration Act and
ordered that the accused be deported
back to Lesotho.
[19] Not only did the
Presiding Magistrate not apply the stare decisis doctrine but failed
to give reasons for the deviation. As
it was submitted earlier, it is
not clear how the Presiding Magistrate applied his discretion. It
also isn't clear if the earlier
decisions by the High Court were even
considered and how they were found to not be applicable in the
present cases before him.
[20] The preamble of the
Immigration Act 13 of 2002
provides that its purpose is:
"To provide for the
regulation of admission of persons to, their residence in, and their
departure from the Republic; and for
matters connected therewith.”
[21] One ought to also
keep in mind the intention of the legislature when applying any law.
Surely, given the prescribed sentence,
the legislature did not intend
for illegal foreigners to be prosecuted and sentenced without any
remedy. The legislature was guarding
against sentencing the accused
and letting them roam free in the country without any undertaking,
supervision or accountability.
Releasing illegal foreigners back into
the country wherein they remain undocumented after having found them
guilty of being illegal
in the said country clearly defeats the whole
purpose.
[22] Therefore the
sentence by the Presiding Magistrate as the failure to make a
deportation order defeats the purpose.
THE IMPACT OF THE
SENTENCES ON IMMIGRATION ENFORCEMENT
[23] The sentences
imposed in these matters have practical consequences beyond the
individual accused. They undermine the ability
of the Department of
Home Affairs to perform its statutory functions. The Department’s
policy, as articulated in the April
2024 Parliamentary response, is
to process deportation within 48 hours of an accused’s release
after serving a sentence or
paying a fine.
[24] When magistrates
impose caution and discharge or wholly suspended sentences without
deportation measures, the Department is
left with no lawful mechanism
to detain or deport the individual. The accused, who has admitted
being an illegal foreigner, remains
in the Republic indefinitely.
This cannot have been Parliament’s intention.
[25] A caution and
discharge for an offence under the
Immigration Act is
inappropriate
where the accused is liable for deportation. It fails to give effect
to the statutory scheme and leaves the immigration
authorities
powerless to act.
CONCLUSION
[26] The sentences
imposed in these three matters are incompetent. They fail to give
effect to
section 34
of the
Immigration Act, which
mandates the
deportation of illegal foreigners. The caution and discharge in
R62/2025 and R63/2025 impose no consequence whatsoever
and provides
no mechanism for deportation. The wholly suspended sentence in
R64/2025 similarly fails to trigger the deportation
process and
effectively permits the accused to remain in the Republic for a
further five years.
[27] Magistrates’
courts are bound by the principle of stare decisis to follow the
legislative scheme as interpreted by higher
courts. The
Immigration
Act must
be applied in a manner that gives effect to both the
criminal penalty provisions and the mandatory deportation
requirement.
[28] Before concluding,
the Court expresses its appreciation to the DPP for the comprehensive
review opinion furnished in this matter.
[29] In the exercise of
this Court’s supervisory jurisdiction, I make the following
order.
ORDER
1.
The
sentences imposed in the following matters are set aside as
incompetent:
R62/2025:
State v Weng Aihua - Cautioned and discharged
R63/2025:
State v Sabbir Ahmed Yusuf Vadia - Cautioned and discharged
R64/2025: State v Wandera
Abrahaman - R1000.00 or 12 months’
imprisonment, wholly
suspended for 5 years
2. The matters are
remitted to the District Magistrate’s Court, Kempton Park, for
proper sentencing in accordance with
the
Immigration Act 13 of 2002
and the principles articulated in this judgment.
3. The Chief
Magistrate, Gauteng, is directed to ensure that a copy of this
judgment is distributed to all magistrates within
the district to
guide future sentencing in matters involving contraventions of
section 49
of the
Immigration Act.
4. In
future
sentencing of illegal foreigners convicted under
section 49(1)(a)
of
the
Immigration Act, magistrates
are directed to:
4.1
Recognise that
section 34
mandates deportation as the primary
consequence;
4.2 Structure
sentences to facilitate deportation, including through the
imposition of actual
imprisonment or immediate payment of fines;
4.3 Where a
suspended sentence is imposed, ensure that it is accompanied by
immediate deportation measures, such as the issuance
of an order to
leave the country.
M. B. NEMAVHIDI
ACTING JUDGE OF THE HIGH
COURT
I agree
M. MOTHA
JUDGE OF THE HIGH COURT
Dated: 25 March 2026
ANNEXURE:
SUMMARY OF CASE LAW CITED
1. (A6/2020) [2020]
ZAGPPHC 6 (15 December 2020).
2.
[2017] ZACC 22
;
2017 (10) BCLR 1242
(CC).
3.
[2023] ZACC 34.
4.
SS08/2026
GPJHC
[1]
(A6/2020) [2020[ ZAGPPHC 6 (15 December 2020)
[2]
[2017] ZACC 22; 2017 (10) BCLR 1242 (CC).
[3]
[2023] ZACC 34.
[4]
Ss08/2026
GPJHC