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South Africa Judgment

Free State High Court, Bloemfontein

S v Moiketsi and Another [2010] ZAFSHC 131 (7 October 2010)

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Professional case brief

Research organized from the available case record

Source document

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

Applicant

Sakia Moiketsi

Respondent

Rethabile Raliile

Respondent

Amounts and remedies

  • Fine Imposed Per Accused: ZAR 20

03

Procedural history

  1. Posture

    Review Application / Special Review After Conviction and Sentence

04

Questions and positions

Legal issues

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

  1. 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

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Judgment reading view

Judgment text

The complete available source text.

Source document

Free State High Court, Bloemfontein

Judgment

[2010] ZAFSHC 131

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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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Criminal Procedure Act 51 of 1977

Legislation

Legislation referenced in the available case record.

Immigration Act No. 13 of 2002

Legislation

Legislation referenced in the available case record.

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