IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
REPORTABLE
In the matters of:
THE STATE v IBRAHIM HASHIM (KINYO) Case No: 92/2025
THE STATE v PRINCE MBANZA Case No: 30/2026
THE STATE v MUNA MKWANA Case No: 97/2025
THE STATE v FRANCIS SAMBA Case No: 89/2025
THE STATE v GIE KOME (ZINGA ALBERTO) Case No: 29/2026
THE STATE v TAJUL ISLAM Case No: 176/2026
LEGAL AID BOARD SOUTH AFRICA First Intervening Party
THE MINISTER OF HOME AFFAIRS Second Intervening Party
THE MINISTER OF JUSTICE
AND CONSTITUTIONAL DEVELOPMENT Third Intervening Party
THE MINISTER OF CORRECTIONAL SERVICES Fourth Intervening Party
THE SCALABRINI CENTRE Amicus Curiae
Coram: Henney J, Slingers J et Kantor AJ
Heard: 28 August 2026
Judgment: 2 September 2026
Summary: On convicting an accused of contravening section 49(1)(a) of the
Immigration Act 13 of 2002, a magistrates’ court does not have the power to make an
order for the deportation of that accused.
ORDER
It is ordered as follows:
1. In THE STATE v IBRAHIM HASHIM (KINYO), Case No: 92/2025:
1.1 The deportation order made is set aside.
1.2 The convictions and sentences are otherwise confirmed.
2. In THE STATE v PRINCE MBANZA, Case No: 30/2026:
2.1 The deportation order made is set aside.
2.2 The convictions and sentences are otherwise confirmed.
3. In THE STATE v MUNA MKWANA, Case No: 97/2025:
3.1 The deportation order made is set aside.
3.2 The convictions and sentences are otherwise confirmed.
4. In THE STATE v FRANCIS SAMBA, Case No: 89/2025:
4.1 The deportation order made is set aside.
4.2 The order that “The accused must also be further detained for the
purposes of deportation in terms of section 34(1), (5) and (8) – Act
13/2002.” is set aside.
4.3 The convictions and sentences are otherwise confirmed.
5. In THE STATE v GIE KOME (ZINGA ALBERTO), Case No: 29/2026:
5.1 The deportation order made is set aside.
5.2 The convictions and sentences are otherwise confirmed.
6. In THE STATE v TAJUL ISLAM, Case No: 176/2026:
6.1 The conditions to the sentence are set aside and reformulated, with the
sentence to read as follows:
“The accused is sentenced to twelve (12) months imprisonment, wholly
suspended for a period of three (3) years on condition that:
1. The accused is not convicted of contravening section 49(1)(a) of the
Immigration Act 13 of 2002 which is committed 30 days after the date of
this order and during the period of suspension.
2. Within 30 days of this order, the accused shall report to the nearest
office of the Department of Home Affairs ( and he shall retain written
proof of having done so), in order for his presence in South Africa to be
dealt with in accordance with the law.
6.2 The convictions and sentences are otherwise confirmed.
JUDGMENT
Handed down by email on 2 September 2026
Judgment handed down electronically by circulation to the legal representatives of
the Intervening Parties and the Amicus Curiae by email and released to SAFLII.
KANTOR, AJ:
1. The above six matters are reviews in terms of the provisions of section 304(4)
of the Criminal Procedure Act 51 of 1977 (“the CPA”). They were referred to this
full bench by the Judge President in terms of section 302 of the CPA. The
reason for this referral is for consideration by a full bench of the legal question
as to whether a magistrates’ court has the power, and/or is obliged, to make an
order for the deportation of a person upon convicting that person of
contravening section 49(1)(a) of the Immigration Act 13 of 2002 (“the Act”).
2. Magistrates have been handing down orders to this effect on a routine basis,
following, primarily, the decision of Luis Alberto Cuna v S (Sentence Appeal)
(A6/2020) [2020] ZAGPPHC 790 (15 December 2020) (‘Cuna’) in which it was
held that a magistrates’ court not only has the power, but is obliged (‘must’), to
make a deportation order on convicting an accused of contravening section
49(1)(a) of the Act. The papers in the six matters before this court revealed that
Magistrates have a template format of an order in this regard which cites Cuna.
There is a stand -out exception, being case number 176/2026, in which the
Magistrate declined to order deportation, a decision which was supported by
well-articulated and cogent reasons which were of assistance to this court.
3. The presiding Judge in this matter, Henney J, requested the Intervening Parties
to make submissions. They did so in writing and in an oral hearing. This was of
considerable assistance to the court which extends it appreciation to those
parties and their legal representatives.
4. Section 49 of the Act creates criminal offences relating to the unlawful entry
into, presence in or departure from the Republic, and prescribes penalties on
conviction. It empowers a criminal court to determine guilt and , if necessary, to
impose sentence.
5. Provisions of the Act core to this matter:
5.1. Section 49 concerns criminal offences, as mentioned. It contains no
express provision authorising a criminal court to order deportation as part
of sentence.
5.2. Deportation is regulated separately, under sections 32 and 34.
5.3. Section 32(1) provides that an illegal foreigner shall depart the Republic
unless authorised by the Director -General to remain “… pending his or
her application for a status.”
5.4. Section 32(2) provides that “Any illegal foreigner shall be deported.”
5.5. Section 34 empowers immigration officers to arrest an illegal foreigner,
detain that person pending deportation, and deport or cause that person
to be deported.
6. The statutory scheme therefore draws a clear distinction between criminal
liability under section 49 and deportation under sections 32 and 34.
7. The main question to be determined in this matter is whether a magistrates’
court has the power to order deportation following conviction or to make an
ancillary order thereto.
8. This Court has not previously considered the question directly or decided it in
terms and with reasons, but other divisions have:
8.1. In Cuna (a decision of two judges on review) it was held that a
magistrates’ court not only has the power, but is obliged, to make a
deportation order on convicting someone of contravening section
49(1)(a) of the Act
8.2. This was followed as binding authority in, for example, Maphosa v S
(A198/2020) [2021] ZAGPPHC 84 (1 March 2021) at paragraphs 28 and
29 and S v Lucas (CC72/2019) [2022] ZAGPPHC 346 (13 May 2022) at
paragraphs 62 and 63.
8.3. In S v John and Others (Review) (79/2026) [2026] ZAWCHC 131 (18
March 2026), a review before two Judges of this division, the court did
not interfere with a deportation order made by a Magistrate. The court,
however, was concerned with other aspects of the sentence in question
and its attention and emphasis did not appear to have been drawn to the
deportation issue. It is evident from the reading of its judgment that the
court did not engage with the issue of a magistrates ’ court’s jurisdiction
to order deportation.
8.4. In S v Chivabo (HC 14/2024) [2024] ZANWHC 156 (27 June 2024) at
paragraphs 8 to 12 , a review before two Judges, reference was made to
Cuna. The Court set aside the proceedings of the magistrates’ court but
not on the basis of Cuna being wrong. It did so for other irregularities in
the proceedings.
8.5. Cuna has been questioned, but not dissented from , in Mba v Magistrate
Simlah, Somerset West [2026] ZAWCHC 196 (30 April 2026) at
paragraph 57 of which this court observed obiter that Cuna may have
been wrongly decided but expressly noted that its correctness was not
decided for the purposes of the urgent application before him.
8.6. Prior to Cuna, i n Rugave v S (Review) (12 October 2016) (151/2016;
DL117/2015) [2016] ZALMPPHC 18 (12 October 2016) a court of two
judges reviewed and set aside an order by the magistrates’ court in
terms whereof the court, consequent to a conviction in terms of section
49(1)(a) of the Act, further ordered the deportation of the accused .
Although very brief, the reasoning was to the effect that the Act did not
clothe the magistrate with the power to order a deportation.
9. The reasoning of the court in Cuna is contained in paragraph 3.1 of the
judgment. Due to its importance in this matter, relevant portions of the judgment
will be quoted relatively extensively:
“3.1 Illegal foreigner charge
3.1.1 At the time of sentencing, the Trial Court was aware that the appellant, who
as a result of his first illegal conviction, was deportable but was not deported.
3.1.2 Section 32 of the Immigration Act reads as follows:
“32. Illegal foreigner
(1) Any illegal foreigner shall depart (own emphasis), unless authorised by
the Director -General in the prescribed manner to remain in the Republic
pending his or her application for status.
(2) Any illegal foreigner shall (own emphasis) be deported.”
3.1.3 “Deport or deportation” means the action or procedure aimed at
causing an illegal foreigner to leave the Republic in terms of the Immigration
Act.
3.1.4 In terms of the Immigration Act it is the Immigration Officer who is
empowered to enforce the process of detention and the deportation of an
illegal foreigner. From the wording of Section 34 of the Immigration Act the
enforcement of the process of deportation includes physically detaining of
the illegal foreigner. It is therefore inconceivable that deportation can take
place without the physical detaining of an illegal foreigner’s person. This
Appeal Court says this by virtue of the fact that , as part of the deportation
process, an illegal foreigner needs to be identified by the embassy/High
commission of the country of origin of the illegal foreigner. The only manner
in which this can take place, is by physically taking the illegal foreigner to the
embassy/High commission concerned. It is unrealistic to assume that such a
person, if released, will, by and on his own volition, report to an
embassy/High commission for purposes of identification and it is also even
more unlikely that such a person is going to report to the
Department’s deportation holding facility, for purposes of deportation upon
being requested to do so. The Department of Home Affairs (“ the
Department”) (responsible for the deportation of illegal foreigners) has in all
likelihood faced countless instances where illegal foreigners who have been
released after an initial detention period, simply fail to report as and when
required, for purposes of effecting or finalising the deportation of the
individual concerned. Let alone an illegal foreigner like the appellant who is
individual concerned. Let alone an illegal foreigner like the appellant who is
simply released after serving a sentence for contravening the provisions of
the Immigration Act.
…
3.1.13 The Trial Court having accepted, at the time, that other material
factors, supra, where to be considered unfortunately failed to consider them
and apply any weight thereto in exercising its discretion, and failed, as well,
to make an order for the deportation of the Appellant ...
3.1.16 The Immigration Act provides that a person who has contravened Section
49(1) thereof 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.
3.1.17 The order so made, where the sentence of imprisonment has been imposed,
can be that he or she be deported after serving the sentence or he or she be
deported in terms of section 34(6) of the Immigration Act. Section 34(6)
provides that any illegal foreigner convicted and sentenced under this Act
may be deported before the expiration of his or her sentence and his or her
sentence shall terminate at that time.”
…
3.1.21 The judiciary is required to impose sentences dictated by facts of each case.
This Appeal Court is in agreement that where possible, such sentences
should be coupled with an order of deportation. Such orders, coupled with
effective use of State resources to curb entry of illegal foreigners into South
Africa will significantly reduce the prevalence of these offenses.
3.1.22 This, in our view, will assist with the seamless operation of the order in
ensuring that illegal foreigners are deported immediately after completing
their sentences or after paying the fine, as the case may be.”
10. In my view, the judgment in Cuna does not appear to identify the statutory or
jurisprudential basis for its decision. It appears, at least in part, to have been
motivated by a need to assist in the seamless operation of deportation and was
informed by section 32 of the Act which provides that a person who is illegally in
the country must be deported. Cuna and the other judgments mentioned above
will be dealt with in some further detail below.
The jurisdiction and powers of Magistrates’ Courts in relation to sentencing
11. The essence is that Magistrates’ Courts are creatures of statute and their
powers are only sourced in statute.
12. The Magistrates’ Courts Act 32 of 1944 (“the MCA”) provides for the
establishment of the Magistrates’ Courts. Section 12(1)(b) of the MCA provides
that a magistrate “… shall possess the powers and perform the duties conferred
or imposed upon Magistrates by any law for the time being in force within the
province wherein his district is situate.”
13. Chapter 8 of the Constitution Act, 1996 , (“the Constitution”) deals with courts
and the administration of justice. Section 165(1) provides that the judicial
authority of the Republic is vested in the courts. Section 166 provides for the
different courts within the judicial system, including the Magistrates’ Courts.
Sections 167, 168 and 169, respectively, deal with the composition, jurisdiction
and powers of the Constitutional Court, the Supreme Court of Appeal and the
High Court of South Africa. Section 170 deals with other courts. It provides:
“All courts other than those referred to in sections 167, 168 and 169 may decide
any matter determined by an Act of Parliamen t, but a court of a status lower than
the High Court of South Africa may not enquire into or rule on the constitutionality
of any legislation or any conduct of the President.” [Emphasis
supplied]
14. Section 173 of the Constitution provides as follows:
“The Constitutional Court, the Supreme Court of Appeal and the High Court of
South Africa each has the inherent power to protect and regulate their own
process, and to develop the common law, taking into account the interests of
justice.”
15. The following flows from the above provisions:
15.1. Magistrates’ Courts, unlike the Constitutional Court, the Supreme Court
of Appeal and the High Court, may only decide matters when statute
confers upon them the jurisdiction and power to do so.
15.2. Unlike the Constitutional Court, the Supreme Court of Appeal, and the
High Court, Magistrates’ Courts have no inherent power to protect and
regulate their own process, or to develop the common law.
15.3. Magistrates’ Courts are creatures of statute and have no jurisdiction
beyond that granted by the Constitution, or by statute : Blue Chip 2 (Pty)
Ltd t/a Blue Chip 49 v Ryneveldt (National Credit Regulator as amicus
curiae) 2016 (6) SA 102 (SCA) at paragraph 10; Rugave at paragraph 4;
Nedbank Limited v Jones 2017 (2) SA 473 (WCC) at paragraph 16.
16. The criminal jurisdiction of Magistrates’ Courts is dealt with in Chapter 12 of the
MCA. Section 92 deals with the limits of the jurisdiction of Magistrates’ Court as
to punishment. It provides as follows:
“(1) Save as otherwise in this Act or in any other law specially provided, the court,
whenever it may punish a person for an offence -
(a) by imprisonment, may impose a sentence of imprisonment for a period
not exceeding three years, where the court is not the court of a regional
division, or not exceeding 15 years, where the court is the court of a
regional division;
(b) by fine, may impose a fine not exceeding the amount determined by the
Minister from time to time by notice in the Gazette for the respective
courts referred to in paragraph (a);
(c) …
(d) by correctional supervision, may impose correctional supervision for a
period as contemplated in section 276A(1)(b) of the Criminal Procedure
Act, 1977 (Act No. 51 of 1977).
(2)
(a) The court shall have jurisdiction to impose any punishment prescribed
in respect of an offence under an ordinance of a province or the
territory which relates to vehicles and the regulation of traffic on public
roads, notwithstanding that such punishment exceeds the jurisdiction
referred to in subsection (1).
(b) Where a person is convicted of culpable homicide arising out of the
driving of a vehicle as defined in any applicable ordinance referred to
in paragraph (a), the court shall have jurisdiction to impose any
punishment which the court may impose under that paragraph in
respect of the offence of driving a vehicle recklessly on a public road.”
[Emphasis supplied]
17. Chapter 28 of the CPA deals with sentence. Section 276 deals with the nature
of punishments. It provides as follows:
“(1) Subject to the provisions of this Act and any other law and of the common
law, the following sentences may be passed upon a person convicted of an
offence, namely -
(a) ...
(b) imprisonment, including imprisonment for life or imprisonment for an
indefinite period as referred to in section 286B(1);
(c) periodical imprisonment;
(d) declaration as an habitual criminal;
(e) committal to any institution established by law;
(f) a fine;
(g) ...
(h) correctional supervision;
(i) imprisonment from which such a person may be placed under
(h) correctional supervision;
(i) imprisonment from which such a person may be placed under
correctional supervision in the discretion of the Commissioner or a
parole board.
(2) Save as is otherwise expressly provided by this Act, no provision thereof
shall be construed -
(a) as authorizing any court to impose any sentence other than or any
sentence in excess of the sentence which that court may impose in
respect of any offence; or
(b) as derogating from any authority specially conferred upon any court
by any law to impose any other punishment or to impose any
forfeiture in addition to any other punishment.
(3) Notwithstanding anything to the contrary in any law contained, other than
the Criminal Law Amendment Act, 1997 (Act 105 of 1997), the provisions of
subsection (1) shall not be construed as prohibiting the court -
(a) from imposing imprisonment together with correctional supervision; or
(b) from imposing the punishment referred to in subsection (1)(h) or (i) in
respect of any offence, whether under the common law or a statutory
provision, irrespective of whether the law in question provides for
such or any other punishment: Provided that any punishment
contemplated in this paragraph may not be imposed in any case
where the court is obliged to impose a sentence contemplated in
section 51(1) or (2), read with section 52, of the Criminal Law
Amendment Act, 1997.”
[Emphasis supplied]
18. As appears from the above, neither the Constitution nor the MCA nor the CPA
expressly confer on the magistrates’ courts the power to deport.
19. Section 92(1) of the MCA, quoted above, refers to powers “in this Act or in any
other law specially provided” . Plainly, the Act is such an ‘ any other law ’ in which
the power to deport may be ‘ specifically provided ’. The main question
considered in this judgment is whether it is so provided. No other possible
source was raised in argument and I was unable to identify any others (on the
contrary, the intervening parties appeared to have been ad idem that no such
statutory power existed).
20. If there is to be a power to deport on the part of Magistrates’ Courts, then,
subject to the question of ancillary orders considered below, that requires to be
sourced in the Act.
The interpretation of statutes
21. As the Act will require interpretation to consider the above question, t he
principles applicable to the interpretation of written instruments, including
statutes, require some consideration. These principles have been thoroughly
traversed by the higher courts in a number of judgments in recent years. 1 The
correct approach is that expressed in paragraph 18 of Endumeni, the standard
reference to which in judgments and counsels’ submissions has become what a
Judge of Appeal recently described as a ‘ritualised incantation’. 2 Interpretation
consequently entails a ‘unitary exercise’ undertaken with reference to the
language used in the instrument (the so -called ‘point of departure’) assessed
not in isolation but with regard to its employment in the instrument read as a
whole, the context (or ‘factual matrix’) of the instrument’s creation and its
evident object or purpose.
22. In paragraphs 18 and 23 of Endumeni the proper approach to interpretation is
described as follows:
“The present state of the law can be expressed as follows: Interpretation is the
process of attributing meaning to the words used in a document, be it legislation,
some other statutory instrument, or contract, having regard to the context
provided by reading the particular provision or provisions in the light of the
document as a whole and the circumstances attendant upon its coming into
existence. Whatever the nature of the document, consideration must be given to
the language used in the light of the ordinary rules of grammar and syntax; the
context in which the provision appears; the apparent purpose to which it is
directed; and the material known to those responsible for its production. Where
more than one meaning is possible, each possibility must be weighed in the light
of all these factors. The process is objective, not subjective. A sensible meaning
is to be preferred to one that leads to insensible or unbusinesslike results or
undermines the apparent purpose of the document ... The 'inevitable point of
undermines the apparent purpose of the document ... The 'inevitable point of
1 The leading judgment is Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA
13 (16 March 2012); [2012] 2 All SA 262 (SCA); 2012 (4) SA 593 (SCA) . See, amongst others,
University of Johannesburg v Auckland Park Theological Seminary and Another [2021] ZACC 13 (11
June 2021; 2021 (8) BCLR 807 (CC) ; 2021 (6) SA 1 (CC) , Capitec Bank Holdings Limited and
Another v Coral Lagoon Investments 194 (Pty) Ltd and Others [2021] ZASCA 99 (9 July 2021); [2021]
3 All SA 647 (SCA); 2022 (1) SA 100 (SCA) , Novartis v Maphil [2015] ZASCA 111 (3 September
2015); 2016 (1) SA 518 (SCA); [2015] 4 All SA 417 (SCA) ; Bothma-Batho Transport (Edms) Bpk v S
Bothma & Seun Transport (Edms) Bpk [2013] ZASCA 176; 2014 (2) SA 494 (SCA).
2 Capitec at paragraph 49
departure is the language of the provision itself', read in context and having
regard to the purpose of the provision and the background to the preparation and
production of the document. If interpretation is, as all agree it is, an exercise in
ascertaining the meaning of the words used in the statute and is objective in
form, it is unrelated to whatever intention those responsible for the words may
have had at the time they selected them."
23. In Tongaat Hulett Limited and Others v South African Sugar Association and
Others 2026 (3) SA 108 (SCA), these principles were very recently reiterated:
“[34] These provisions should be construed in accordance with the recognised
principles of interpretation. The proper approach to legislative interpretation in our
law requires courts to ascertain and give effect to the intention of the legislature,
as expressed in the wording of the statute, while also considering the context,
purpose, and underlying values of the Constitution. In this regard, the purposive
approach is favoured, ensuring that statutory provisions are read holistically and
in a manner that promotes the spirit, purport, and objects of the Bill of Rights.
[35] The Constitutional Court, in Investigating Directorate: Serious Economic
Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others (Hyundai
Motor Distributors ), affirmed that interpretation must be consistent with
constitutional values and that ambiguity must be resolved in a way that best
promotes those values. Similarly, this Court in Natal Joint Municipal Pension
Fund v Endumeni Municipality emphasised that statutory interpretation is a
unitary exercise, requiring consideration of language, context, and purpose
together. These authorities underscore the importance of a contextual, purposive,
and constitutionally aligned approach to legislative interpretation.
[36] It is a fundamental tenet of our law of statutory interpretation that legislation
[36] It is a fundamental tenet of our law of statutory interpretation that legislation
must, wherever possible, be read in a manner that is consistent with the
Constitution. This principle, often referred to as the doctrine of constitutional
compliance, has become a cornerstone of modern interpretive methodology in
South Africa. It requires courts to favour an interpretation of statutory provisions
that upholds, rather than undermines, constitutional rights and values.”
24. In the same decision at paragraph 40, the SCA also observed that statutory
provisions must be interpreted within the broader framework of the legislation of
which they form part:
“Given the legal principles outlined above, s 136(2) must also be interpreted within
the broader framework of Chapter 6 of the Companies Act, which regulates
business rescue proceedings. That chapter sets out the statutory framework for
business rescue proceedings in South Africa. Its provisions empower business
rescue practitioners temporarily to suspend or apply for the cancellation of certain
company obligations arising from agreements concluded before the
commencement of business rescue proceedings.”
The nature of deportation
25. The nature of deportation requires consideration as part of the context in which
the Act is to be interpreted insofar as the power to deport is concerned. This will
assist in informing whether the power to be deport is to be located in the
executive branch of government or in the judicial branch or both.
26. The deportation power flows from a State’s right under international law to
control its borders. In Mohamed v the President of the Republic of South Africa
2001 (3) SA 893 (CC) the Constitutional Court explained the nature of
deportation at paragraph 29:3
“Deportation is essentially a unilateral act of the deporting state in order to get
rid of an undesired alien. The purpose of deportation is achieved when such alien
leaves the deporting state’s territory; the destination of the deportee is
irrelevant to the purpose of deportation.”
27. Foreign courts have repeatedly recognised that deportation serves the limited
administrative function of removal and does not operate as a punishment:
27.1. In Fong Yue Ting v United States 149 US 698 (1893) at 730, the United
States Supreme Court recognised that:
“The order of deportation is not a punishment for crime. It is not a
banishment, in the sense in which that word is often applied to the
expulsion of a citizen from his country by way of punishment. It is but a
method of enforcing the return to his own country of an alien who has not
complied with the conditions upon the performance of which the
Government of the nation, acting within its constitutional authority, and
through the proper departments, has determined that his continuing to
reside here shall depend.”
33 See also Ex parte Minister of Home Affairs and Others; In re Lawyers for Human Rights v Minister
of Home Affairs and Others (CCT 38/16) [2023] ZACC 34; 2024 (1) BCLR 70 (CC); 2024 (2) SA 58
(CC) at paragraph 9
27.2. In R v Nazari [1980] 1 WLR 1366 at 1373F-H, the Court of Appeal for
England and Wales recognised that deportation decisions often involve
politically sensitive matters that are best left to the executive. It is
therefore a power that the judicial arm of the State should not exercise:
“… the courts are not concerned with the political systems which operate
in other countries. They may be harsh; they may be soft; they may be
oppressive; they may be the quintessence of democracy. The court has
no knowledge of those matters over and above that which is common
knowledge; and that may be wrong. In our judgment it would be
undesirable for this court or any other court to express views about
regimes which exist outside the United Kingdom of Great Britain and
Northern Ireland. It is for the Home Secretary to decide in each case
whether an offender's return to his country of origin would have
consequences which would make his compulsory return unduly harsh.
The Home Secretary has opportunities of informing himself about what is
happening in other countries which the courts do not have.”
27.3. In Maaouia v France (Application 39652/98) ECHR (5 October 2000) at
paragraph 29, the European Court of Human Rights accepted France’s
concession that deportation does not operate as a punishment but is
intended to expel an unlawful foreigner. The court noted that there are
some jurisdictions in Europe that afford their courts the power to make
deportation orders by law, but that this was “ unusual” and that , even
where this power is so conferred by statute, it does not operate as a
punishment:
“The Government further pointed out that under the Commission’s settled
case-law, deportation and exclusion orders did not concern criminal
charges or amount to punishment for the purposes of Article 6 of the
Convention. The Government agreed with that analysis, which was
based on the elementary observation that exclusion orders were not
based on the elementary observation that exclusion orders were not
penalties, but administrative measures, even if, unusually, the legislature
had assigned the task of making such orders to the criminal courts.
Indeed, that observation was supported by the fact that under the laws of
most States the administrative authorities were also competent to make
such orders, the purpose being not to punish a specific act but to deter
foreign nationals from further infringing the legislation on the entry and
stay of aliens. The aim of exclusion orders was therefore essentially
preventive. It was that special characteristic that made it possible to
request the rescission of such orders, no equivalent remedy being
available for criminal penalties in the strict sense.”
28. The act of deportation therefore appears to be administrative. It does not serve
to punish illegal foreigners, but to remove them from a State because they have
no entitlement to be there. Once they are removed, the objective of deportation
is fulfilled. Deportation is not a punishment. It is an act that arises from the
State’s power to regulate and control those within its borders.
Whether the Act confers a power to deport on courts
29. The question is whether a magistrates’ court has the power to order a
deportation. On my reading thereof, t he source of the authority to make a
deportation order was not identified by the court in Cuna or the cases that
followed it. As mentioned, the only possible source which arose in argument
and which occurred to me was the Act (aside from the aspect of ancillary
orders, considered below).
30. The starting point is the basic principle that a public power, in this case to
deport, must have a source in law. As held in AAA Investments (Pty) Ltd v
Micro Finance Regulatory Council 2007 (1) SA 343 (CC) at paragraph 68:
“Public power on the other hand can only be validly exercised if it is clearly
sourced in law.”
31. The principle of legality restrains the exercise of all public power, 4 including the
power exercised by the courts: National Director of Public Prosecutions v Zuma
2009 (2) SA 277 (SCA) at paragraph 15. In Lester v Ndlambe Municipality and
Another 2015 (6) SA 283 (SCA) it was held at paragraph 26, citing Zuma, that:
“… the courts are similarly constrained by the doctrine of legality, i.e. to exercise
only those powers bestowed upon them by law”.
4 Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council 1999 (1) SA
374 (CC) at paragraph 58; Pharmaceutical Manufacturers Association of SA: In re Ex Parte President
of the Republic of South Africa 2000 (2) SA 674 (CC) at paragraph 17; Justice Alliance of South Africa
v Republic of South Africa 2011 (5) SA 388 (CC) at paragraphs 29 and 30.
32. The crisp question, therefore, is whether the power to deport has been
bestowed upon the magistrates’ courts by the Act and, if so, how.
33. As mentioned, t he power of a magistrates’ court must be sourced in statute.
Unlike the high court, it has no inherent jurisdiction, and it has no power to
make remedial orders that are just and equitable.5
34. The relevant provisions of the Constitution, MCA and the CPA have been
considered and none of them bestow upon the courts the power to deport.
35. Section 34 of the Act regulates deportation. It vests th e power to deport in
immigration officers and only they have the power to deport. The definition of
immigration officer does not include magistrates . Section 34 (1) of the Act
empowers an immigration officer to arrest illegal foreigner s, deport them and
detain them pending deportation. The entire scheme and structure of section 34
is premised on an immigration officer exercising the deportation power. This, in
my view, is compatible with the act of deportation being an administrative act.
36. Section 34 provides as follows:6
5 Ndlovu v S 2017 (2) SACR 305 (CC) at paragraph 41; S and Others v Van Rooyen and Others
(General Council of the Bar) 2002 (2) SACR 222 (CC) at paragraph 28; Nedbank Limited v Jones and
Others 2017 (2) SA 473 (WCC) at paragraph 16.
6 In Lawyers for Human Rights v Minister of Home Affairs and Others 2017 (5) SA 580 (CC) the
Constitutional Court declared sections 34(1)(b) and (d) of the Immigration Act to be inconsistent with
sections 12(1) and 35(2)(d) of the Constitution and therefore invalid. The Court suspended the
declaration of invalidity for a period of twenty -four months in order to enable Parliament to correct the
defect. The Court ordered further that, pending such legislation, any illegal foreigner detained in terms
of section 34(1) shall be brought before a court in person within 48 hours from the time of arrest or not
later than the first court day after the expiry of the 48 hours, if the 48 hours expired outside the
ordinary court days. Parliament failed to enact the required legislation timeously, whereafter the
Department of Home Affairs again approached the Constitutional Court for an extension of the already
lapsed period of suspension. In Ex parte Minister of Home Affairs and Others; in re Lawyers for Human
Rights v Minister of Home Affairs and Others 2024 (2) SA 58 (CC) , the Court made further orders
regulating the time within which a detained illegal foreigner must be brought before court, the
considerations that must be taken into account by, respectively, an immigration officer considering the
arrest and detention of an illegal foreigner in terms of section 34(1) and a court considering whether
the interests of justice permit the release of such person. The Court further ordered that, if the
“(1) 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 or
cause him or her to be detained in a manner and at a place determined by
the Director-General, provided that the foreigner concerned –
(a) shall be notified in writing of the decision to deport him or her and of his
or her right to appeal such decision in terms of this Act;
(b) may at any time request any officer attending to him or her that his or
her detention for the purpose of deportation be confirmed by warrant of
a Court, which, if not issued within 48 hours of such request, shall
cause the immediate release of such foreigner;
(c) shall be informed upon arrest or immediately thereafter of the rights set
out in the preceding two paragraphs, when possible, practicable and
available in a language that he or she understands;
(d) may not be held in detention for longer than 30 calendar days without a
warrant of a Court which on good and reasonable grounds may extend
such detention for an adequate period not exceeding 90 calendar days,
and
(e) shall be held in detention in compliance with minimum prescribed
standards protecting his or her dignity and relevant human rights.
(2) ….
(3) ….
(4) ….
(5) Any person other than a citizen or a permanent resident who having been -
(a) removed from the Republic or while being subject to an order issued
under a law to leave the Republic, returns thereto without lawful
authority or fails to comply with such order; or
(b) refused admission, whether before or after the commencement of this
Act, has entered the Republic,
shall be guilty of an offence and liable on conviction to a fine or to
imprisonment for a period not exceeding 12 months and may, if not already
in detention, be arrested without warrant and deported under a warrant
in detention, be arrested without warrant and deported under a warrant
issued by a Court and, pending his or her removal, be detained in the
manner and at the place determined by the Director-General.
(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.
(7) On the basis of a warrant for the removal or release of a detained illegal
foreigner, the person in charge of the prison concerned shall deliver such
foreigner to that immigration officer or police officer bearing such warrant,
and if such foreigner is not released he or she shall be deemed to be in
lawful custody while in the custody of the immigration officer or police officer
bearing such warrant.”
[Emphasis supplied]
required remedial legislation is not enacted within a period of twelve months, its order would remain in
force until enactment of such legislation. Although remedial legislation has been enacted, it has not
been brought into effect as yet.
37. It is apparent from the provisions of section 34(1) that an immigration officer has
the following powers in respect of an illegal foreigner:
37.1. to arrest;
37.2. to detain pending his or her deportation;
37.3. to deport.
38. The Act provides for powers of the courts which relate to or are incidental to
deportation but which do not include the power to deport.
39. Section 34(1)(b) of the Act:
39.1. In terms of section 34(1)(b) of the Act, at the request of an illegal
foreigner who has been detained, his/her detention is to “… be confirmed
by warrant of a Court, which, if not issued within 48 hours of such
request, shall cause the immediate release of such foreigner.”
39.2. This concerns whether a detention is lawful. This, in my view, is neither
the decision to deport, nor the exercise of the power to deport, by a
court.
40. Section 34(5) of the Act (see also paragraph 58 below):
40.1. Section 34(5) of the Act concerns the situation where persons enter the
Republic while already subject to pre -existing decisions which excluded
them from the Republic (deportation or refusal of admission). In such
event they can be arrested under a warrant issued by a court and
detained pending removal.
40.2. Where a court acts in terms of section 34(5), it has the power to issue a
warrant for the person’s arrest and that person is to be deported under
that warrant. That, however, is not the power to deport: the accused
having either been deported already or having entered the country after
already having been refused permission to do so, the warrant is to
enforce that deportation or refusal of entry. In both instances the
(administrative) decision in question (to deport or to refuse entry) has
already been made and the statutory function of the court is to enforce
that decision by means of the issue of a warrant.
40.3. The court’s role is to issue a warrant arising from the pre -existing lawful
decision, in order to enforce that decision. This, in my view, is neither the
decision to deport, nor the exercise of the power to deport, by a court.
41. In argument (and in Cuna), it was suggested that section 34(6) is the provision
authorising courts to deport illegal foreigners. In this regard:
41.1. Section 34(6) provides as follows:
“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.”
41.2. This concerns deportation not having to wait until a sentence has run its
course. It may be processed and enforced before the sentence has been
served, and, if it so, the imprisonment shall terminate. In other words, it
caters for the situation of a person being deported while serving a
sentence. This is reinforced by the provisions of section 34(7).
41.3. The wording of the section does not convey any intention to confer
jurisdiction upon a court to order the deportation of an illegal foreigner.
41.4. Rather, on a plain reading thereof, it regulates that, notwithstanding a
sentence of imprisonment, an illegal foreigner may be deported prior to
its termination, and that on the implementation thereof the sentence of
imprisonment terminates.
----
41.5. That deportation is to be made in accordance with the provisions and
procedures of the Act.
41.6. Where a sentence of imprisonment has been imposed under one or
other provision of the Act, such sentence terminates once the illegal
foreigner is deported.
41.7. The import of section 34(6) is the impact of deportation on a prison
sentence. It has nothing to do with where the power to deport resides.
41.8. Such a provision makes sense because , in its absence, the illegal
foreigner would have to serve the sentence of imprisonment and could
only be deported thereafter. By virtue of section 34(6), deportation does
not have to be delayed, and the person may be deported even though
the sentence of imprisonment has not been served to completion , in
which event the imprisonment terminates.
41.9. Properly construed, the provision does not confer any power on a court
to order the deportation of an illegal foreigner. Rather, as argued by Mr
Jamie, who appeared with Mr Mayosi for the Minister of Home Affairs
and the Minister of Correctional Services, it resolves the tension between
section 34(6) and 34(7).
41.10. Such power remains within the sole purview of an immigration officer, as
provided for in section 34(1).
41.11. In my view, this section 34(6) does not, on a proper interpretation
thereof, confer jurisdiction upon a court to order the deportation of an
illegal foreigner, more especially after a conviction and the imposition of
a sentence in terms of section 49(1)(a) of the Immigration Act.
41.12. The reliance on section 34(6) in Cuna and by the State in argument in
this matter is therefore, in my view, misplaced.
----
42. Further, the courts have review jurisdiction to determine whether a deportation
decision, and any appeal arising from that decisio n in terms of section 8 of the
Act, was determined lawfully.
43. Prior to its amendment in 2004, section 37 of the Act provided as follows:
“37.(1) Every magistrates’ court is an Immigration Court for the purposes of this Act
and shall have jurisdiction on any matter arising from the application of this Act,
including, but not limited to –
(a) the review of decisions of the Department;
(b) any legal proceedings against the Department; and
(c) any matter concerning status.
(2) Any legal proceedings arising from the application of this Act shall be dealt
with as soon as is reasonably possible and the Courts must ensure that such
proceedings are finalised without any unavoidable delay.
The Rules Board for Courts of Law established in terms of the Rules Board of
Courts of Law Act, 1985 (Act No. 107 of 1985), shall as soon as reasonably
possible after the commencement of this Act make rules aimed at facilitating the
adjudication of any matter arising from this Act in a simplified and expeditious
manner.”
44. The Act was amended by the Immigration Amendment Act 19 of 2004 ,
repealing section 37 in its entirety. Section 37 established magistrates’ courts
as immigration courts and conferred considerably wider jurisdiction on them
than is currently the case. They had jurisdiction in relation to any matter arising
from the application of the Act . T he removal of th is provision indicates a
legislative decision that magistrates’ courts would no longer have extensive
jurisdiction of the nature conferred upon them in terms of section 37.
45. The power of a court to order deportation remains a question of vires. As
mentioned, t wo constitutional principles are of importance in construing the
ambit of the court’s powers: the legality principle and the requirement that
statutes be read in a manner that is consonant with the underlying values of the
Constitution, and that promotes the spirit, purport and objects of the Bill of
Rights (Tongaat Hulett at paragraphs 34 to 36).
46. As to the legality principle, it entails that no -one may exercise a power or
perform a function not conferred upon them by law. If they purport to do so, they
act unlawfully (Law Society of South Africa and Others v President of the
Republic of South Africa and Others 2019 (3) SA 30 (CC) at paragraphs 46 to
48 and 56 ). As demonstrated above , there is no statutory basis for a
magistrates’ court to order deportation. In the absence of such a statutory basis,
magistrates’ courts have no such power.
47. Section 49(1)(a) of the Act provides as follows:
“Anyone who enters or remains in, or departs from the Republic in contravention
of this Act, shall be guilty of an offence and liable on conviction to a fine or to
imprisonment not exceeding two years.”
48. In terms of section 49(1)(a), a court may, upon conviction, impose a sentence of
a fine, or of imprisonment not exceeding two years.
49. The statutory framework considered above is to the effect that a court, whether
a magistrates’ court or another court, has no jurisdiction to impose any other
sentence, save those provided for in the Act.
50. Section 276(2)(a) of the CPA (quoted above) is of particular relevance in this
regard, in that it provides that, save as is otherwise expressly provided for in the
CPA, no provision thereof shall be construed as authorising any court to impose
any sentence other than, or in excess of , the sentence which that court may
impose in respect of any offence.
51. Given the provisions of section 49(1), it follows that magistrates’ courts are
confined to the sentences expressly provided for therein insofar as the offences
provided for therein are concerned.
52. A consideration of section 49(1)(b) further fortifies this conclusion:
“Any illegal foreigner who fails to depart when so ordered by the Director -General,
shall be guilty of an offence and liable on conviction to a fine or to imprisonment
not exceeding four years.”
53. That provision, apart from regulating different conduct, namely a failure to
depart when so ordered by the Director -General, imposes its own permissible
sentences, which, similarly, may not be departed from by a court following a
conviction in terms thereof.
54. None of the remaining provisions of section 49 confer the power on a ny court to
order the deportation of an illegal foreigner. The section is concerned with the
creation of offences for non -compliance with the provisions of the Act, and for
the sentences to be imposed following upon conviction. The section does not,
in its terms, deal with the conferring of the power to deport an illegal foreigner.
55. In my view, n o provision of the Act vests the courts with power to make
deportation orders at all, let alone deportation orders in sentencing
proceedings.
The power to deport provided for in the Act
56. The statutory position considered above is unsurprising because the aspect of
the deportation of illegal foreigners is dealt with in a different part of the Act, that
relating to enforcement and monitoring, whereas section 49 is located in th e
part of the Act dealing with offences. Section 32 is the first section in the
enforcement part of the Act. It provides as follows:
“(1) Any illegal foreigner shall depart, unless authorised by the Director -General in
the prescribed manner to remain in the Republic pending his or her application
for a status.
(2) Any illegal foreigner shall be deported.”
57. Section 34 , quoted above, deals with the deportation and detention of illegal
foreigners.
58. As dealt with above (particularly in para graph 40), when an illegal foreigner has
been convicted , under section 34(5), a court m ay both convict and sentence
such person. Where a court acts in terms of section 34(5), it has the power to
issue a warrant for the person’s deportation . As considered above, that,
however, is not the power to deport, the accused having either been deported
already or having entered the country having already been refused permission
to do so. In both instances the administrative decision in question (to deport or
to refuse entry) has already been made and the statutory function of the court is
to enforce that decision by means of the issue of a warrant. That, however, is
not the decision to deport.
59. The distinct difference in language between sections 34(5) and 49(1)(a), where
both provisions deal with the power of a court to convict and to sentence an
offender under the Act, is a strong indication of a different legislative intention in
relation to the two situations. This was recently recognised in S v Aihua
(R62/2025; R63/2025; R64/2025) [2026] ZAGPJHC 887 (30 July 2026) at
paragraph 8 as follows: “ … 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.”
60. If the legislature intended a court convicting an illegal foreigner in terms of
section 49(1)(a) to have the power to order the deportation of such illegal
foreigner or issue a warrant for such deportation, it would have inserted wording
similar to that to be found in section 34(5). It has not.7
61. In Lawyers for Human Rights v Minister of Home Affairs and Others 2017 (5)
SA 480 (CC) at paragraph 24 to 26, the Constitutional Court affirmed that, inter
alia, the section 12 right applied to illegal foreigners, and that the denial thereof
would negate the values of human dignity, equality and freedom . Section
49(1)(a) is readily subject to an interpretation that does not impact on the
section 12 right, and on other constitutional rights. That interpretation is to be
preferred: Moyo and Another v Minister of Police and Others; Sonti and
Another v Minister of Police and Others 2020 (1) SACR 373 (CC) at paragraph
56. Accordingly, and apart from the textual and contextual indicators as to the
proper interpretation of section 49(1)(a), the aforementioned constitutional
principles promote the same conclusion.
62. In conclusion, and upon a proper construction thereof, neither section 49(1) nor
any other provision of the Act or any other law, authorises the magistrates’
courts to order the deportation of an illegal foreigner convicted in terms of
section 49(1) of the Act , that power being the purview of immigration officials
provided for in section 34 of the Act.
7 Marine & Trade Insurance Co Limited v Workmen’s Compensation Commissioner 1972 (1) SA 535
(N) at 539. For a discussion of this principle, and the manner in which it must be applied, see:
Devenish on Interpretation: Statutory Interpretation, Vol 1, at p 401
Cuna and other judgments dealing with the issue considered in further detail in
the light of the aforegoing analysis
63. Louis Alberto Cuna v S (Sentence Appeal) (A6/2020) [2020] ZAGPPHC 790 (15
December 2020) , a decision of two Judges, i s the most prominent judgment ,
holding that courts convicting a person of a contravention of section 49(1)(a) of
the Immigration Act must, in addition, make an order for such person’s
deportation.
64. Cuna was an appeal from a sentence imposed in the magistrates’ court for the
District of Ekurhuleni, Benoni. That court had not made an order that the
accused be deported. 8 Paragraph 3.1.4 of the judgment recognised that,
pursuant to the provisions of section 34 of the Act, it was an immigration officer
who is empowered to enforce the process of detention and the deportation of
an illegal foreigner. At paragraph 3.1.13, the court stated the following:
“The Trial Court, having accepted at the time, that other material factors, supra,
where (sic) to be considered unfortunately failed to consider them and apply any
weight thereto in exercising its discretion, and failed, as well, to make an order
for the deportation of the Appellant.”
65. The gravamen of the judgment appears from the following paragraphs:
“3.1.16 The Immigration Act provides that a person who has contravened Section
49(1) thereof 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 his or her
deportation.
3.1.17 The order so made , where the sentence of imprisonment has been
imposed, can be that he or she be deported after serving the sentence or
he or she be deported in terms of section 34(6) of the Immigration Act .
Section 34(6) provides that any illegal foreigner convicted and sentenced
under this Act may be deported before the expiration of his or her
under this Act may be deported before the expiration of his or her
sentence and his or her sentence shall terminate at that time.
3.1.18 This situation, in our opinion, could have been alleviated by the trial court
making a deportation order in addition to the sentence it imposed.
8 At paragraphs 1.1 and 1.15
…
3.1.21 The judiciary is required to impose sentences dictated by facts of each
case. This Appeal Court is in agreement that where possible, such
sentences should be coupled with an order of deportation . Such orders,
coupled with effective use of State resources to curb entry of illegal
foreigners into South Africa will significantly reduce the prevalence of
these offenses.
3.1.22 This, in our view, will assist with the seamless operation of the order in
ensuring that illegal foreigners are deported immediately after completing
their sentences or after paying the fine, as the case may be.”
[Emphasis supplied]
66. In my view, the judgment contains no reasoning in support of its central
conclusion, in paragraph 3.1.16 of the judgment, that a magistrates’ court, upon
conviction of an illegal foreigner in terms of section 49(1) of the Act, is
authorised, let alone obliged, to make a deportation order in respect of such
person. There is no jurisprudential basis for the power or authority to make such
an order, or to be obliged to do so (an obligation in this respect could attract
constitutional implications adverted to above, but that is beyond the purview of
this judgment). The highwater mark of the judgment appears to be the
reference in paragraph 3.1.17 thereof to section 34(6). For the reasons already
dealt with, that section does not, however, in my view, confer jurisdiction upon a
court to make an order of deportation. On the contrary, it concerns the situation
where a person has been ordered to be deported under the Act but is serving a
prison sentence – what section 34(6) sensibly achieves is to allow for the
person to be removed from the country prior to having served the full period of
imprisonment, in which event the imprisonment terminates.
67. For the reasons dealt with in the section above dealing with the powers of
magistrates’ courts, and the proper interpretation of section 49(1), such courts
magistrates’ courts, and the proper interpretation of section 49(1), such courts
have no power other than those expressly conferred by statute. In my view,
there is no statutory provision conferring upon such courts the power to order
the deportation of illegal foreigners, for the reasons already dealt with, and
Cuna does not identify one.
68. Finally, in relation to Cuna, insofar as the court may have viewed the
prevalence of immigration offences as requiring to be addressed in order to
assist with the “ seamless operation” of deporting foreigners, while this state of
affairs may be so, it cannot serve to create a power where none exists. Any
Judge of this division who has sat in the unopposed motion court or in the
urgent court, which includes the full panel of this full bench, will have
experienced what is becoming a significant flow of immigration litigation in
relation to deportation. I suspect that the position can only be much more
pronounced in the Gauteng division of the high court. While this may be the
case, the function of the courts is to apply the law, not to assist the executive
organs of state in a manner not permitted by law: Phillips and Others v National
Director of Public Prosecutions 2006 (1) SA 505 (CC) at paragraphs 46 to 52, in
which the court was dealing with the inherent powers of superior courts. A
fortiori, this applies to magistrates’ courts which lack such powers. Whether the
power to deport is to be vested in the magistrates’ court is a decision of the
legislature, not the courts.
69. In Maphosa v S (A198/2020) [2021] ZAGPPHC 84 (1 March 2021) at
paragraphs 28 and 29, another two judge bench of the same court applied and
followed Cuna, adopting the conclusion that, once an accused had been found
guilty in terms of section 49(1) of the Act, and sentenced either to a fine or
imprisonment, the trial court must in addition make a deportation order.
Maphosa applied Cuna without any analysis of its reasoning or by providing its
own reasons. It applied Cuna because it had been decided as such. Maphosa
therefore does not take the matter further.
70. S v Lucas (CC72/2019) [2022] ZAGPPHC 346 (13 May 2022) dealt with a
Malawian national charged with murder, robbery with aggravating
circumstances, and a contravention of section 49(14) of the Immigration Act. At
paragraph 58, the court commented on the influx of illegal foreigners into the
country. Reference was made to Maphosa and Cuna at paragraphs 61 and 62.
The court ordered that the accused be deported after serving his sentence,
stating the following at paragraph 63:
“This court is bound by the doctrine of stare decisis and by statute, and it follows
that the accused must be deported after serving his sentence.”
71. Lucas did not analyse the reasoning and conclusions reached in either
Maphosa or Cuna, nor did it apply its own analysis of the relevant provisions. It
referred to the requirement in section 32(2) of the Act that any illegal foreigner
shall be deported, but it did not analyse the provision any further . Insofar as
section 32(2) is concerned, that section , in my view, plainly does not confer
jurisdiction on a magistrates’ court to order deportation. Properly construed,
what section 32(2) requires is that an illegal foreigner be deported. It is left to
other provisions of the Act to regulate deportation. For the reasons dealt with
above, such provision is section 34, and in particular section 34(1), which
confers the power to deport upon an immigration officer, not a court.
72. The final judgment of which I am aware to have followed Cuna is S v Chivabo
(HC 14/2024) [2024] ZANWHC 156 (27 June 2024) , a review before two
judges. The presiding magistrate had declined to make a deportation order
pursuant to a conviction in terms of section 49(1) of the Act, and the Chief
Magistrate had thereafter referred the matter for review. At paragraph 8 to 12
the court referr ed to Cuna and Maphosa and found that the magistrate was
bound by the principle of stare decisis and should have imposed a deportation
order. There was no analysis of the judgments in Cuna or Maphosa, nor did it
undertake its own analysis. Chivabo therefore takes the matter no further.
73. In neither Cuna nor any of the judgments that followed and applied was
reference made to Rugave v S (Review) (151/2016; DL117/2015) [2016]
ZALMPPHC 18 (12 October 2016) in which a review court comprising two
judges reviewed and set aside an order by the magistrates’ court in terms
whereof that court, consequent to a conviction in terms of section 49(1)(a) of
the Act, had ordered the deportation of the accused. 9 After recording that the
matter had been referred to the Office of the Director of Public Prosecutions,
which expressed the view that the magistrate was not entitled to order the
deportation of the accused, a view with which the court expressed agreement, it
held as follows at paragraph 4:
“A magistrates' Court is a creature of statute. It only has the jurisdiction which is
conferred upon it by statute. It exercises no inherent jurisdiction and can
accordingly not adjudicate matters which fall outside of its expressly conferred
jurisdiction and cannot grant orders other than those it is expressly authorised to
grant - Nedbank Ltd v Norris and Others 2016 (3) SA 568 (ECP) at para 45.”
74. After referring to sections 34(1) and 49(1)(a) of the Act, the court held as follows
at paragraph 7:
“The two sections do not make a reference to the court having powers to deport a
foreigner. It is therefore impermissible for a court to impose an order not
expressly sanctioned by law.”
9 At paragraph 2
75. While the reasoning is pithy, with the judgment consisting of only eight
paragraphs, in my view, the conclusion reached in Rugave is correct, being
consistent with the analysis, reasoning and conclusions set out in this judgment.
76. The principle of stare decisis requires a court to follow decisions of courts
higher than it in the judicial hierarchy, or courts of equal status unless satisfied
that its decision is clearly wrong .10 Cuna and the judgments that followed it are
neither of these, insofar as this court is concerned, being a full bench of a
separate division, and are therefore only persuasive, not binding. Cuna and the
judgments that followed it are , in my view, incorrect, for the reasons articulated
above and I am not persuaded to follow them and decline to do so.
Consequences of Cuna and the cases that follow it
77. Cuna holds that deportation orders are mandatory where an accused is
convicted of an offence under section 49 (1) of the Act. On that authority, a
magistrate has no discretion but to order a deportation. The deportee is
deprived of their right to an internal appeal under section 8 of the Act. That
appeal would allow the deportee to place all the relevant facts and
circumstances before the Director General and the Minister of Home Affairs
regarding the deportation decision. The Act contemplates that a deportation
decision by an immigration officer may be wrong and should not operate
automatically. It builds in protections through an internal appeal mechanism and
does not treat the decision as automatic. Cuna renders all considerations other
than a conviction under section 49, as irrelevant to a decision to deport.
10 Erasmus Superior Court Practice, 3 rd Edition, at page D -118A. See also Ruta v Minister of Home
Affairs 2019 (2) SA 329 (CC) at paragraph 21
78. The Amicus Curiae made what appear to be cogent submissions as to t here
being unintended consequences to this approach:
78.1. First, it could have the effect of separating families and violating the
rights of the child under section 28 of the Constitution. The family life of
the deportee is relevant to any deportation decision that is taken. But
Cuna renders these considerations irrelevant, following a conviction for a
section 49 offence. In Rayment v Minister of Home Affairs 2024 (2) SA
591 (CC) the Constitutional Court held at paragraph 97:
“I, therefore, emphasise that, in requiring the foreign national to leave the
country, the provisions of the Immigration Act may separate a parent from
his or her child and may prevent such a foreign national from living with
his or her child. The provisions thus also limit the child’s right to human
dignity: Indeed, both provisions of the Immigration Act – sections 10(6)(b)
and 18(2) – require a foreign national whose spousal visitor’s visa has
expired to leave the Republic and the provision which prohibits such a
foreign national from working or conducting a business also limits the
rights of the child protected by section 28(1)(b) and (2) of the Constitution
as was also held to be the case by this Court in Nandutu. There may be
other rights entrenched in the Bill of Rights that are also limited by
the Immigration Act. However, it is not necessary to deal with them all at
the same time.”
78.2. Second, a deportation order – as required by Cuna – may violate the
non-refoulment principle. The order may have the effect of deporting the
convicted person to a place he/she will face persecution, without
providing him /her an opportunity to apply for asylum. In this instance,
deportation will operate as a punishment which is prohibited by article 31
of the Refugees Convention . The Constitutional Court has repeatedly
recognised the importance of non-refoulement and the international law
recognised the importance of non-refoulement and the international law
obligation not to impose penalties. For example, see Scalabrini Centre of
Cape Town and Another v Minister of Home Affairs and Others
(CCT126/25) [2026] ZACC 30 (7 July 2026) at paragraphs 9, 10, 34 and
35.
78.3. Third, it could have adverse consequences in combatting cross -border
trafficking offences. Very often, the only evidence in trafficking is the
presence of the trafficked person. The automatic deportation order
required by Cuna does not consider whether the presence of the
trafficked person may be necessary for purposes of criminal
proceedings. It mandates the deportation of the trafficked person,
notwithstanding the possible need for this evidence.
78.4. Fourth, there is no reason why a deportee under section 34 of the Act
should have greater rights than a deportee who is brought before court
on a charge under section 49 of the Act.
Whether an order to deport is an ancillary order
79. In argument, the State contended that a deportation order is a sentence
ancillary to a conviction in terms of section 49(1) of the Act.
80. An ancillary order is a sentence handed down by a court as a consequence of a
criminal conviction. While it is not a primary punishment (such as imprisonment,
a fine, or correctional supervision), it serves as a secondary statutory
mechanism to protect the public, manage risk, or safeguard victims.
81. The source of the power in this regard is not to be found in the MCA or the CPA
(particularly section 276 thereof ), but in other specific statutes. A very common
example is section 103 of the Firearms Control Act 60 of 2000 in terms of which
an accused convicted of certain offences listed therein may be declared unfit to
possess a firearm. Other examples include section 50 of the Criminal Law
(Sexual Offences and Related Matters) Amendment Act 32 of 2007 , section
120 of the Children’s Act 38 of 2005, section 31 of the Older Person’s Act 13 of
2006, section 29 of the Prevention and Combating of Corrupt Activities Act 12
of 2004 and section 35 of the National Road Traffic Act 93 of 1996 . In this
regard, see S v Antonio (136/2024) [2024] ZAWCHC 121; 2024 (2) SACR 62
(WCC) (3 May 2024).
82. There is no statute providing for deportation to be an ancillary order. Although it
does not have to be there, logic suggests that, if there were to be such a
provision in a statute, it would be located in the Act. As held above, it is not. The
State’s argument in this respect is declined to be followed.
Conclusion
83. In my view, the magistrates’ courts do not have the power to order the
deportation of illegal foreigners.
Brief consideration of each of the matters
State v Ibrahim Hashim (Kinyo): Case No. 92/2025
84. This matter served before me as an automatic review in terms of section 304 of
the CPA. The accused was charged with a contravention of section 4(a) and (b)
of Act 140 of 1992, as well as a contravention of section 49(1)(a) of the Act. The
accused was convicted after a plea of guilty and sentenced on the first count to
a fine of R2 000.00 or sixty days imprisonment and in respect of the second
count to a fine of R3 000.00 or ninety days imprisonment. In my view, these
convictions and sentences are in accordance with justice.
85. In addition, the Magistrate made the following order:
“Accused must be deported to his Country of origin Tanzania – after serving the
Sentence or paying the fine. Further detention to [be] effected for purposes of
deportation.”
86. The court signed the order for deportation in the form of what appears to be a
template used by magistrates’ courts in th is division, and which cites Cuna as
authority for the deportation order and applies it in terms . My consideration of
the papers in that matter and m y reading of Cuna with the Act revealed the
possible problem of a lack of statutory or jurisprudential basis for such an order,
hence my request for reasons for the deportation order . T he presiding
magistrate responded on 27 November 2025, indicating that, “Where the
accused has been found guilty in terms [of section] 49(1) and sentenced either
to a fine or imprisonment the court must make an order for him/her to be
deported.” It was flowing from this that I referred the matter to the Judge
President for consideration and she thereafter convened this full bench to
consider it and the others placed before it.
87. For the reasons articulated in this judgment, the deportation order is invalid in
law and falls to be set aside.
State v Prince Mbanza: Case No. 30/2026
88. The accused was charged with one count of contravening section 49(1)(a) of
the Act, as well with a second count of theft. The accused pleaded guilty to the
immigration charge and was duly convicted and sentenced to a fine of
R3 000.00 or ninety days imprisonment. In my view, the conviction and
sentence are in accordance with justice. On 20 March 2026, and following upon
the conviction and sentence, the presiding magistrate made an order for
deportation, once again in the form of the aforementioned template , and on the
authority of Cuna.
89. For the reasons articulated in this judgment, the deportation order is invalid in
law and falls to be set aside.
State v Muna Mkwana: Case No. 97/2025
90. The accused was charged with a contravention of section 49(1)(a) of the Act
and was sentenced to six months direct imprisonment in terms of section 276(1)
of the CPA. In my view, the conviction and sentence are in accordance with
justice. Under sentence, the court also ordered: “ ANCILLARY ORDER: THE
ACCUSED’S DEPORTATION IS ORDERED IN TERMS OF THE
IMMIGRATION ACT 13/2002 AFTER SERVING THE IMPRISONMENT
IMPOSED”. The deportation order is also recorded on the same template as in
the other matters, save that the word “Ancillary” has been inserted by hand.
91. For the reasons articulated in this judgment, the deportation order is invalid in
law and falls to be set aside.
The State v Francis Samba: Case No. 89/2025
92. The accused was charged with a contravention of section 4(a) and (b) of Act
140 of 1992 and a contravention of section 49(1)(a) of the Act. The accused
pleaded guilty and was convicted and sentenced to a fine of R1 000.00 or thirty
days imprisonment in relation to the drugs offence and twelve months'
imprisonment in respect of the immigration offence. In my view, these
convictions and sentences are in accordance with justice . At the end of the
proceedings the presiding magistrate ordered: “The accused must also be
further detained for the purposes of deportation in terms of section 34(1), (5)
and (8) – Act 13/2002.” The deportation order appears on the same template as
in the other cases.
93. For the reasons articulated in this judgment, the deportation order is invalid in
law and falls to be set aside.
The State v Gie Kome (Zinga Alberto): Case No: 29/2026
94. The accused was charged with a contravention of section 4(b) of Act 140 of
1992, and a contravention of section 49(1)(a) of the Act. Upon conviction after a
plea of guilty he was sentenced to a fine of R1 000.00 or thirty days
imprisonment in respect of count 1 and to a fine of R3 000.00 or ninety days
imprisonment in respect of count 2, the immigration offence. In my view, these
convictions and sentences are in accordance with justice. The deportation order
appears on the same template as in the other cases.
95. For the reasons articulated in this judgment, the deportation order is invalid in
law and falls to be set aside.
The State v Tajul Islam: Case No. 176/2026
96. The accused was charged with a single count of contravening the Act inasmuch
as he was alleged to have entered and remained in or departed from the
Republic in contravention of the Act. The annexure to the charge sheet
indicates that the allegation against the accused was that he remained in the
country after his visa had expired. The record of proceedings indicate s that the
accused was represented, that he pleaded guilty in terms of section 112 of the
CPA, and handed in a statement in terms of section 212 thereof. It appears
that, following conviction, the accused was questioned by the presiding
magistrate, who also elected to call an immigration officer, Mr Lofuna, to give
evidence. The evidence of Mr Lofuna appears at bundle pages 356 to 368.
From the questions posed by him to Mr Lofuna, the presiding magistrate was
concerned that the accused might re-offend and be able to avoid detection and
apprehension for the purposes of deportation after he had paid a fine.
Mr Lofuna testified that, whether a fine was paid at court or at prison, officials of
the Department of Home Affairs would be able to detain the accused in terms of
section 34(1) and thereafter attend to his deportation. The presiding magistrate,
Mr E J McCullum, imposed the following sentence , recorded in a “SENTENCE
ANNEXURE” signed by him:
“The accused is sentenced as follows:
1. The accused is sentenced to twelve (12) months imprisonment, wholly
suspended for a period of three (3) years on the following conditions:
1.1 That the accused is not convicted of contravening Section 49(1)(a) of
the Immigration Act, 13 of 2002 committed during the period of
suspension;
1.2 That the accused shall surrender himself immediately after the
conclusion of these criminal proceedings to Mr. Funo (sic), the
immigration officer present in court, to enable the Department of Home
Affairs to act in terms of section 34(1) [of] the said Act, as
constitutionally qualified by the Constitutional Court, in Ex parte
Lawyers of Human Rights v Minister of Home Affairs, 2023, judgment.”
97. The Senior Magistrate, Kuils River, submitted the matter to this Court for
review, referencing section 49(1)(a) of the Act and that “The Magistrate is of the
view that it is not necessary to make a Deportation Order. ” In my view, for the
reasons articulated above, Magistrate McCullum was correct in declining to
make a deportation order. His detailed reasons were of assistance to this court.
The aspect of the conditions of suspension of sentence is considered in the
next section.
The conditions of suspension of sentence in case number 176/2026
98. This aspect is dealt with under a separate heading because it raises a discrete
issue.
99. The sentence in case number 176/2026 is quoted in full in paragraph 96 above.
100. The Minister of Home Affairs and the Minister of Correctional Services (“ the
Ministers”) argued that in case number 176/2026 the court erred in imposing
the second condition. Their argument may be summarised as follows: Section
297 of the CPA provides for a suspended sentence, as also for the conditions
on which a sentence may be suspended. In summary, such conditions are
directed either at compensating the victim of the offence, providing a benefit or
service, to the victim or the wider community, submitting to correctional
supervision or some other form of instruction or treatment, or to the accused’s
future good conduct. The Ministers submitted, in the present case, that the
second condition imposed for the suspension of the sentence of imprisonment,
that the accused surrender himself for purposes of being processed in terms of
section 34(1) of the Act, is not a condition as contemplated in section 297. They
argued that it has none of the features of a condition for purposes of the
suspension of a period of imprisonment, and is, as expressly acknowledged by
the magistrate, intended to facilitate an entirely different purpose, the
deportation of the accused. It was also argued that the word ‘surrender’ was
inappropriate or at least not clear. As such, it was submitted that it is not a
lawful or appropriate condition, and that it would not be in accordance with
justice for it to be confirmed by this court.
101. In oral argument, it was contended on behalf of the Ministers that the first
condition is inappropriate because it involves a continuing offence.
Conditions in terms of section 297 of the CPA
102. Section 297(1)(b) of the CPA empowers a sentencing court, after convicting an
accused, to pass sentence but suspend the operation of the whole or any part
of that sentence for a period not exceeding five years on any condition referred
to in section 297(1)(a)(i) of the CPA.
103. Section 297(1)(a)(i) of the CPA contains a number of specified conditions,
including compensation, community service, treatment, supervision, attendance
or residence at a specified centre, good conduct and “ any other matter ” under
section 297(1)(a)(i)(hh) of the CPA.
104. The starting point in the consideration of this aspect is that section 297 allows
for a condition dealing with “ any other matter ”. The significance of this
terminology includes: (1) the legislature did not confine conditions to
suspended sentences to the specific examples listed in sub-paragraphs (aa) to
(gg); and (2) it is of very wide ambit. The other possible conditions in the section
are not applicable.
The principles applicable to conditions
105. The leading case on the topic of conditions (relied on by the Ministers) is R v
Cloete 1950 (4) SA 191 (E) in which the court held as follows at 192F-G:
“While the words of sec. 360 (b) of Act 31 of 1917 11 are wide and the discretion
of the judicial officer should not be lightly interfered with, it does seem that two
principles at least should be observed in the imposition of the conditions. The
first is that the condition imposed should bear at least some relationship to the
circumstances of the crime which is being punished by the imposition of the
suspended sentence. It need not be closely related but should be related to it in
some degree at least, even though slightly related, and not divorced from it, or
remote from it. The second is that the condition be stated with such precision
that the convicted person may understand the ambit of the condition.”
11 A precursor of section 297 of the CPA
106. This was approved in this division in S v Benn; Sv Jordaan; S v Gabriels 2004
(2) SACR 156 (C) at 160h -I, at which it was also held that there is a third
condition, namely that the condition is reasonable. See also S v Martin 2022 (1)
SACR 421 (WCC) at paragraphs 11 to 15 at which the three requirements were
reiterated. In paragraph 15 of Martin, it was held, in relation to the first principle
in Cloete, that “ It should be emphasised that any condition imposed by the
sentencing court must bear at least some relationship to the circumstances of
the crime which is being punished by the imposition of the suspended
sentence.”
107. The question, then, is whether the condition s satisfies the requirement as
articulated in Cloete: “ It need not be closely related but should be related to it
in some degree at least, even though slightly related, and not divorced from it,
or remote from it.” And as in Martin quoted above.
Whether the conditions in question are competent
108. Mr Jamie submitted that using a statutory power for some purpose other than
that for which alone it has been given is an act contra legem, and referred the
court to Minister of Justice and Constitutional Developmen t and Another v
South African Restructuring and Insolvency Practitioners Association and
Others 2017 (3) SA 95 (SCA) at paragraphs 64 and 65:
“[64] There is a fundamental principle that must be observed in this regard. It
was summarised in Gauteng Gambling Board where Navsa JA, speaking for a
unanimous court said:
‘More than six decades ago this court in Van Eck NO and Van Rensburg NO v
Etna Stores 1947 (2) SA 984 (A) said the following:
“For to profess to make use of a power which has been given by statute for
one purpose only, while in fact using it for a different purpose, is to act in
fraudem legis, construing that term in the more restricted manner adopted by
the majority of this Court in the case of Dadoo Ltd v Krugersdorp Municipal
the majority of this Court in the case of Dadoo Ltd v Krugersdorp Municipal
Council (1920 AD 530). . . Such a use is a mere simulatio or pretext. . . . And
I should add that, of course, if the person exercising the power avowedly
uses it for some purpose other than that for which alone it has been given,
he acts simply contra legem: where, however, he professes to use it for its
legitimate purpose, while in fact using it for another, he acts in fraudem
legis.”
In present -day jurisprudence acting with an ulterior motive or purpose is
subsumed under the principle of legality.’
[65] In my opinion it is precisely that type of breach of the principle of legality that
has occurred here. In their legitimate desire to address past discrimination and
disadvantage, the Minister and the Chief Master have overlooked the
fundamental purpose of the legislation that governs the sequestration of estates
and the winding -up of companies and close corporations, which is to serve the
interests of creditors as conceived by the creditors themselves. The policy that
has been promulgated is not directed at that purpose and disavows the need for
the process of appointment that it governs to have regard to the views or
interests of creditors. That is an exercise of power for a purpose other than any
for which it was bestowed. It should not be difficult for the Minister and the Chief
Master to devise a policy that serves both purposes instead of trying to serve one
at the expense of the other.”
109. The conviction was for contravening section 49(1)(a) of the Act, on the basis
that the accused was in the country in contravention of the Act. The second
condition imposed was that the accused surrender himself to an immigration
officer to enable the Department of Home Affairs to act in terms of section 34(1)
of the Act. The condition did not amount to the criminal court exercising an
administrative deportation function. On the contrary, its import was for the
accused to submit to the lawful administrative process contemplated by the Act,
the outcome of which remained to be determined by the immigration authorities
the outcome of which remained to be determined by the immigration authorities
to determine. The Magistrate recorded in his judgment: “… But there is always
a possibility that you will slip through the net. And to a certain extent, this Court
is bound by its duties to uphold the rule of law, and the Court cannot impose a
sentence which will allow you to go free to commit, or to continue the
commission of the contravention of section 49(1)(a) of the Immigration Act.”
110. The accused, as an illegal foreigner, must be dealt with in terms of section
32(2) and 34 of the Act insofar as deportation is concerned. Having received a
suspended sentence for his conviction in terms of section 49(1)(a) of the Act, he
would not be imprisoned and therefore not be in detention from which the
question of his deportation could be dealt with by an immigration officer, as
contemplated in section 34(6). The accused being an illegal foreigner present in
the country, and the conviction having been for that, reporting to an immigration
officer, as he was obliged to do is, in my view, to a high degree, and directly,
related to the offence of which he was convicted . Should the accused not
comply with the condition and remain in the country, he would again be
committing the offence in terms of section 49(1)(a) of the Act. The condition
accordingly serves to prevent the offence being repeated. There are therefore,
in my view, two aspects of the condition related to the offence directly and to a
high degree.
111. In principle, there is no impediment to such a condition.
112. Mr Jamie contended in regard to the formulation of the conditions ordered:
112.1. There is an element of irrationality in the first condition because of the
continuing nature of the offence. This submission appears to have
some merit. It can be addressed by affording the accused time within
which to regulate his status and thereafter the condition shall apply.
112.2. The word ‘ surrender’ implied some form of forced detention and the
reference to enabling the Department of Home Affairs to act in terms of
section 34(1) could be interpreted as a form of disguised deportation
order or an instruction to the Department as to what to do. These
aspects are dealt with below.
113. I do not agree with the contention that the word ‘surrender’ implies some form of
forced detention. I read it as being intended to mean that the accused must
present himself to an immigration officer . Detention would be up to the
immigration officer acting in terms of section 34(1) of the Act – the question of
detention being precisely part of what the immigration officer will be required to
consider in the exercise of a discretion in terms of section 34(1) of the Act
referred to in the second condition. I do, however, detect some force in Mr
Jamie’s argument to the extent that the meaning and import of ‘ surrender’ may
be confusing and that a more neutral (and, perhaps, less emotive or dramatic)
word or phrase such as ‘report’ or ‘present himself’ would be more suitable and
remove any possible uncertainty, in order to comply with the requirements in
Cloete, read with Benn and Martin.
114. As to the reference to enabling the Department of Home Affairs to act in terms
of section 34(1) possibly being interpreted as a form of disguised deportation
order, or an instruction to the Department as to what to do, I do not think that
this would be use of a statutory power (sentencing in a criminal matter) for
some purpose other than that for which alone it has been given and an act
contra legem (Minister of Justice). Any uncertainty can be addressed by means
of a reformulation. In any event, the conditions were not for this purpose alone,
and were for another purpose, as dealt with above.
115. Both of the above aspects can be addressed by a reformulation. I am satisfied
that the conditions be set aside and reformulated as follows (for convenience of
presentation the sentence is included):
“The accused is sentenced to twelve (12) months imprisonment, wholly suspended
for a period of three (3) years on condition that:
1. The accused is not convicted of contravening section 49(1)(a) of the
Immigration Act 13 of 2002 which is committed 30 days after the date of this
order and during the period of suspension.
2. Within 30 days of this order , the accused shall report to the nearest office of
the Department of Home Affairs ( and he shall retain written proof of having
done so), in order for his presence in South Africa to be dealt with in
accordance with the law.
116. In all the circumstances, I conclude that the condition , as reformulated, has a
direct and rational connection to both the offence and the circumstances giving
rise to the conviction and is more than, but at least, slightly related to the crime
for which the accused was convicted, thus satisfying the test in Cloete.
117. In my view, therefore, this court ought to replace the conditions ordered under
case number to read as reformulated above.
118. Two final observations on this topic:
118.1. It is to be borne in mind that sentences and conditions in regard thereto
are fact and circumstance specific. The above reformulation has been
prepared specific to this one case (176/2026). It is not to be use d
blindly as a template by presiding officers without regard to the specific
facts and circumstances of the matters before them and in sentencing
proceedings the presiding officers should take account thereof in
crafting any appropriate condition(s).
118.2. When an accused is charged with an offence under section 49 of the
Act, it would be appropriate for presiding officers, if necessary in the
circumstances, during the sentencing proceedings, to inform an
unrepresented accused that a possible sentence in respect of the
charge could include condition(s) of the above nature.
Invitation from the State to refer to Parliament
119. In its heads of argument, the State submits that should this court “ … find that
the Act does not confer such a power on a criminal court, the State respectfully
submits that the Court ought to draw that apparent lacuna to the attention of
Parliament for consideration. ” The Minister of Home Affairs and the Minister of
Justice and Constitutional Development both participated in the hearing of this
matter and in making written submissions. They are in a position to take any
steps they consider appropriate in this regard.
Conclusion and orders
120. In each of the matters, I am of the view that:
120.1. The convictions appear to be in accordance with justice, and may be
confirmed.
120.2. This court should set aside the deportation order s as being not in
accordance with justice, besides in case number 176/2026 in which no
such order was made.
120.3. The remaining parts of the sentence s appear to be in accordance with
justice, and may be confirmed.
121. In the premise, I propose that it be ordered as follows:
121.1. In THE STATE v IBRAHIM HASHIM (KINYO), Case No: 92/2025:
121.1.1. The deportation order made is set aside.
121.1.2. The convictions and sentences are otherwise confirmed.
121.2. In THE STATE v PRINCE MBANZA, Case No: 30/2026:
121.2.1. The deportation order made is set aside.
121.2.2. The convictions and sentences are otherwise confirmed.
121.3. In THE STATE v MUNA MKWANA, Case No: 97/2025:
121.3.1. The deportation order made is set aside.
121.3.2. The convictions and sentences are otherwise confirmed.
121.4. In THE STATE v FRANCIS SAMBA, Case No: 89/2025:
121.4.1. The deportation order made is set aside.
121.4.2. The order that “The accused must also be further detained
for the purposes of deportation in terms of section 34(1), (5)
and (8) – Act 13/2002.” is set aside.
121.4.3. The convictions and sentences are otherwise confirmed.
121.5. In THE STATE v GIE KOME (ZINGA ALBERTO), Case No: 29/2026:
121.5.1. The deportation order made is set aside.
121.5.2. The convictions and sentences are otherwise confirmed.
121.6. In THE STATE v TAJUL ISLAM, Case No: 176/2026:
121.6.1. The conditions to the sentence are set aside and
reformulated, with the sentence to read as follows:
“The accused is sentenced to twelve (12) months imprisonment,
wholly suspended for a period of three (3) years on condition
that:
1. The accused is not convicted of contravening section
49(1)(a) of the Immigration Act 13 of 2002 which is
committed 30 days after the date of this order and during
the period of suspension.
2. Within 30 days of this order, the accused shall report to the
nearest office of the Department of Home Affairs ( and he
shall retain written proof of having done so), in order for his
presence in South Africa to be dealt with in accordance with
the law.
121.6.2. The convictions and sentences are otherwise confirmed.
_________________
A Kantor
Acting Judge of the High Court
I agree, and it is so ordered:
______________________
R Henney
Judge of the High Court
I agree:
______________________
H Slingers
Judge of the High Court