S v Mlambo and Others (R73/2020) [2021] ZAFSHC 48 (24 February 2021)

S v Mlambo and Others (R73/2020) [2021] ZAFSHC 48 (24 February 2021)

The reviewing court found that the sentences imposed for contravention of section 1(1) of Act 6 of 1959 exceeded the statutory maximum of two years imprisonment. The magistrate correctly referred the matter for review, acknowledging the error. Given the substantial period already served by the accused and the adequacy of the record, the reviewing court deemed it prejudicial to remit the matter for resentencing and instead imposed the appropriate sentence itself. The sentences for the trespassing charge were replaced with two years imprisonment, effective from the original sentencing date, and ordered to run concurrently with sentences on other charges.

Citation
[2021] ZAFSHC 48
Parties
Applicant: The State; Respondent: Toronco Mlambo; Respondent: Albert Mashaba; Respondent: Shem Sithole; Respondent: Comfort Mbomfana; Respondent: Cloutis Skonyana; Respondent: Yoketsi Klaas; Respondent: Morgan Mokonyane
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
24 February 2021
Case Number
R73/2020
Procedural Posture
Criminal Review / Review of Sentence
Outcome
Sentences for contravention of section 1(1) of Act 6 of 1959 set aside and replaced with two years imprisonment, effective from 23 August 2019, to run concurrently with other sentences.
Judges
Mathebula, O'Brien
Legal Topics
Sentencing Review, Impermissible Sentence, Trespassing, Immigration Offences, Concurrent Sentences
Criminal Law Sentencing Review Impermissible Sentence Trespassing Immigration Offences Concurrent Sentences

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Parties

The State

Applicant

Toronco Mlambo

Respondent

Albert Mashaba

Respondent

Shem Sithole

Respondent

Comfort Mbomfana

Respondent

Cloutis Skonyana

Respondent

Yoketsi Klaas

Respondent

Morgan Mokonyane

Respondent

Procedural Posture

Criminal Review / Review of Sentence

Legal Issues

  1. 1 Whether the sentences imposed for contravention of section 1(1) of Act 6 of 1959 exceeded the statutory maximum period of imprisonment.
  2. 2 Whether the matter should be remitted to the magistrate for resentencing or whether the reviewing court should impose the appropriate sentence.
  3. 3 Whether the sentences should run concurrently with other sentences imposed.

Ratio Decidendi

The reviewing court found that the sentences imposed for contravention of section 1(1) of Act 6 of 1959 exceeded the statutory maximum of two years imprisonment. The magistrate correctly referred the matter for review, acknowledging the error. Given the substantial period already served by the accused and the adequacy of the record, the reviewing court deemed it prejudicial to remit the matter for resentencing and instead imposed the appropriate sentence itself. The sentences for the trespassing charge were replaced with two years imprisonment, effective from the original sentencing date, and ordered to run concurrently with sentences on other charges.

Court Disposition

Sentences for contravention of section 1(1) of Act 6 of 1959 set aside and replaced with two years imprisonment, effective from 23 August 2019, to run concurrently with other sentences.

Orders

  • The sentences imposed by the magistrate on charge number two (contravention of section 1(1) of Act 6 of 1959) are set aside and replaced with two years imprisonment for each accused, effective from 23 August 2019.
  • The sentences imposed on this count will run concurrently with the sentences imposed on the other charges.