S v Moiketsi and Another [2010] ZAFSHC 131 (7 October 2010)
- Citation
- [2010] ZAFSHC 131
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Free State High Court, Bloemfontein
- Panel
- Moloi
- Case number
- 492/2010
More details
- Court
- Free State High Court, Bloemfontein
- Panel
- Moloi
- Case number
- 492/2010
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The magistrate erred in imposing a sentence of imprisonment without the option of a fine under section 112(1)(a) of the Criminal Procedure Act. The law restricts sentencing powers in summary guilty pleas to fines not exceeding the prescribed amount or other competent sentences excluding imprisonment without the option of a fine. The convictions are confirmed, but the sentences of imprisonment are set aside and substituted with a fine of R20 or, failing payment, twenty days imprisonment, predated to the date of original sentence.
Court disposition
Convictions confirmed; sentences of imprisonment set aside and substituted with a fine or imprisonment.
Orders
- In both cases the convictions are confirmed.
- The sentence of twenty days imprisonment in each case is set aside.
- The sentence of twenty Rand (R20.00) or twenty days imprisonment is substituted for the sentence in both cases.
- The sentence is predated to 23 September 2010.
- The order must be faxed to the correctional services facility and the magistrate to arrange for the release of the accused when due.
02
Material facts
Parties
The State
ApplicantSakia Moiketsi
RespondentRethabile Raliile
RespondentAmounts and remedies
- Fine Imposed Per Accused: ZAR 20
03
Procedural history
Posture
Review Application / Special Review After Conviction and Sentence
04
Questions and positions
Legal issues
- 01
Whether the magistrate was empowered to impose a sentence of imprisonment under section 112(1)(a) of the Criminal Procedure Act.
- 02
Whether the convictions and sentences were in accordance with the law.
Party arguments
- Applicant
- The State prosecuted both accused for unlawful entry into South Africa under the Immigration Act. Both pleaded guilty and were sentenced to twenty days imprisonment.
- Respondent
- No formal argument was presented by the accused; the review was initiated by the magistrate due to concern over the legality of the sentence imposed.
05
Court’s reasoning
Legal principles
- 01
Criminal Procedure Act 51 of 1977, section 112(1)(a)
Under section 112(1)(a) of the Criminal Procedure Act, a magistrate may not impose imprisonment or detention without the option of a fine, nor a fine exceeding the prescribed amount.
06
Ratio, limits and disposition
Ratio decidendi
The magistrate erred in imposing a sentence of imprisonment without the option of a fine under section 112(1)(a) of the Criminal Procedure Act. The law restricts sentencing powers in summary guilty pleas to fines not exceeding the prescribed amount or other competent sentences excluding imprisonment without the option of a fine. The convictions are confirmed, but the sentences of imprisonment are set aside and substituted with a fine of R20 or, failing payment, twenty days imprisonment, predated to the date of original sentence.
Obiter and limits
- The order must be faxed to the correctional services facility and the magistrate to ensure the accused are released when due.
Court disposition
Convictions confirmed; sentences of imprisonment set aside and substituted with a fine or imprisonment.
- In both cases the convictions are confirmed.
- The sentence of twenty days imprisonment in each case is set aside.
- The sentence of twenty Rand (R20.00) or twenty days imprisonment is substituted for the sentence in both cases.
- The sentence is predated to 23 September 2010.
- The order must be faxed to the correctional services facility and the magistrate to arrange for the release of the accused when due.
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)
Review Number. : 492/2010
In review between:-
THE STATE
and
SAKIA MOIKETSI ….......................................................Case No. 511/2010
RETHABILE RALIILE ….................................................Case No. 510/2010
CORAM: MOLOI, J
JUDGMENT BY: MOLOI, J
___________
DELIVERED ON: 07 OCTOBER 2010
JUDGMENT
MOLOI, J
[1] This is a special review forwarded to me by the Magistrate, Clocolan.
[2] The two accused, both citizens of Lesotho appeared separately before the magistrate, Clocolan on charges of contravening section 49(1) r/w section 1, 10, 25 and 26 of the Immigration Act No. 13 of 2002 in that they unlawfully entered the Republic of South Africa without valid passports or documents authorising them to do so. They pleaded guilty and the proceedings were finalised in terms of section 112 (1) (a) of the Criminal Procedure Act 51 of 1977. The Magistrate, however, imposed a sentence of Twenty (20) days imprisonment in respect of each accused.
[3] The proceedings under section 112 (1) (a) of the Act, however, require that the magistrate may only;
“ (1) Impose any competent sentence, other than imprisonment or any other form of detention without the option of a fine or a fine exceeding the amount determined by the Minister from time to time by notice in the Gazette…”
[4] Clearly the sentence of Twenty (20) days imprisonment is not in accordance with the law bearing in mind the provisions of section 112 (1) (a) of the Criminal Procedure Act, 51 of 1977. As a consequence, I make the following orders:
4.1 In both cases the convictions are confirmed.
4.2 The sentence of Twenty (20) days imprisonment in each case is set aside.
4.3 The sentence of Twenty Rand (R20.00) or Twenty (20) days imprisonment is substituted for the sentence in 4.2 above in both cases;
4.4 The sentence in 4.3 above is predated to 23 September 2010;
4.5 The order must be faxed through to the correctional services facility where the accused are held forthwith and to the magistrate, Clocolan, to make the necessary arrangements for their release when due.
____
MOLOI, J
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