S v Elshazly (535/2008) [2008] ZAFSHC 114 (25 September 2008)
- Citation
- [2008] ZAFSHC 114
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Free State High Court, Bloemfontein
- Panel
- B. C. Mocumie, M. H. Rampai
- Case number
- 535/2008
More details
- Court
- Free State High Court, Bloemfontein
- Panel
- B. C. Mocumie, M. H. Rampai
- Case number
- 535/2008
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that while the conviction of the accused for possession of a falsified permanent residence permit under the Immigration Act was correct and the proceedings were in accordance with justice, the sentence imposed by the magistrate—two years imprisonment wholly suspended for five years—was incompetent because it exceeded the statutory maximum penalty of three months imprisonment or a fine. The sentence was therefore set aside and substituted with a sentence that complies with the statutory limits: R600 or three months imprisonment, wholly suspended for five years on condition that the accused is not convicted of a similar offence during the period of suspension.
Court disposition
Conviction confirmed; sentence set aside and substituted with a competent sentence.
Orders
- The conviction by the presiding officer is confirmed.
- The sentence is altered to: R600 or three months imprisonment wholly suspended for five years on condition that the accused is not convicted of contravention of section 49(1)(a) read with section 29(1)(f) of the Immigration Act 13 of 2002 during the period of suspension.
02
Material facts
Parties
The State
ApplicantA Elshazly
RespondentAmounts and remedies
- Fine Imposed: ZAR 600
03
Procedural history
Posture
Special Review / Sentence Review After Conviction
04
Questions and positions
Legal issues
- 01
Whether the sentence imposed for contravention of section 49(1)(a) read with section 29(1)(f) of the Immigration Act 13 of 2002 was competent.
- 02
Whether the conviction was in accordance with justice.
Party arguments
- Applicant
- The State did not advance specific arguments in the review; the matter was referred by the presiding magistrate due to concerns about the competence of the sentence imposed under the Immigration Act.
- Respondent
- The accused pleaded guilty and admitted all elements of the offence through a statement in terms of section 112(2) of the Criminal Procedure Act. No further argument was advanced on review.
05
Court’s reasoning
Legal principles
- 01
Immigration Act 13 of 2002
A sentence must comply with the penalty prescribed by the relevant statute; for contravention of section 49(1)(a) read with section 29(1)(f) of the Immigration Act, the penalty is a fine or imprisonment not exceeding three months.
- 02
Criminal Procedure Act 51 of 1977, section 304
Special review may be invoked where a sentence is incompetent or not in accordance with justice.
06
Ratio, limits and disposition
Ratio decidendi
The court found that while the conviction of the accused for possession of a falsified permanent residence permit under the Immigration Act was correct and the proceedings were in accordance with justice, the sentence imposed by the magistrate—two years imprisonment wholly suspended for five years—was incompetent because it exceeded the statutory maximum penalty of three months imprisonment or a fine. The sentence was therefore set aside and substituted with a sentence that complies with the statutory limits: R600 or three months imprisonment, wholly suspended for five years on condition that the accused is not convicted of a similar offence during the period of suspension.
Obiter and limits
- The accused was legally represented and admitted all elements of the offence, ensuring the proceedings were fair.
- The review process serves to correct sentences that do not comply with statutory requirements.
Court disposition
Conviction confirmed; sentence set aside and substituted with a competent sentence.
- The conviction by the presiding officer is confirmed.
- The sentence is altered to: R600 or three months imprisonment wholly suspended for five years on condition that the accused is not convicted of contravention of section 49(1)(a) read with section 29(1)(f) of the Immigration Act 13 of 2002 during the period of suspension.
Source and reliance status
Free State High Court, Bloemfontein
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Free State High Court, Bloemfontein
Judgment
IN
THE HIGH COURT OF SOUTH AFRICA
(ORANGE FREE STATE PROVINCIAL DIVISION)
Special Review No. : 535/2008
In the review between:-
THE
STATE
versus
A ELSHAZLY
_____________
CORAM: RAMPAI, J et MOCUMIE,
J
JUDGMENT BY: MOCUMIE,
J
DELIVERED ON: 25 SEPTEMBER 2008
SPECIAL
REVIEW
JUDGMENT
1. The accused was charged with contravention of section 49(1)(a) read with section 29 (1)(f) of the Immigration Act 13 of 2002 (“the Immigration Act”) (possession of a falsified permanent residence permit) in the Magistrate court, Ficksburg. He was convicted as charged and the
presiding officer’s sentence is recorded as follows: “2(two) years imprisonment wholly suspended for 5 years on condition that during the period of suspension the accused is not convicted of contravention of section 49(1)(a) read with section 29(1)(f) Act 13/2002 committed during the period of suspension.”
He was legally represented during the trial.
2. The presiding officer who dealt with this matter sent this case on special review in terms of section 304 of the Criminal Procedure Act 51 of 1977 (“the CPA”) because he was of the view that although the accused was correctly convicted of c/s 49(1) of the Immigration Act the sentence imposed was incompetent. The penalty prescribed by the Immigration Act for this offence is a fine or imprisonment not exceeding three months.
3. The accused pleaded guilty and tendered a statement in terms of section 112(2) of the CPA through his legal representative. He admitted all the elements of the offence preferred against him adequately. The presiding officer correctly convicted the accused as charged. There are no grounds to justify a conclusion that the proceedings were not in accordance with justice.
4. I now turn to the sentence imposed which is the subject-matter of the special review. The sentence imposed by the presiding officer can only be faulted in that it is indeed incompetent. The sentence ought to be set aside and substituted with the correct one.
In the circumstances I make the following order:
ORDER
The conviction by the presiding officer in this matter is confirmed.
The sentence imposed by the presiding officer is altered to read as follows:
“R600.00(six hundred rand) or 3(three) months imprisonment wholly suspended for 5 years on condition that the accused is not convicted of c/s 49(1)(a) read with section 29(1)(f) of the Immigration Act 13 of 2002 committed during the period of suspension.”
_____
B. C. MOCUMIE, J
I concur.
M. H. RAMPAI, J
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