S v Phemadu (185/2012) [2012] ZAFSHC 192 (18 October 2012)

S v Phemadu (185/2012) [2012] ZAFSHC 192 (18 October 2012)

The sentence imposed by the magistrate was not in accordance with justice because the alternative imprisonment term of four months exceeded the statutory maximum of three months prescribed by section 49(1)(a) of the Immigration Act. Although the accused's ability to pay the fine was not canvassed in the record, the fact that he paid the fine on the day of sentencing rendered reconsideration of the fine unnecessary. The prevalence and seriousness of illegal immigration justified the imposition of the maximum permissible alternative imprisonment term. The sentence was reviewed, set aside, and substituted with a fine of R4,000 or three months' imprisonment, antedated to the original...

Citation
[2012] ZAFSHC 192
Parties
Applicant: The State; Respondent: Pius Phemadu
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
18 October 2012
Case Number
185/2012
Procedural Posture
Review Application / Special Review Under Section 304(4) of the Criminal Procedure Act
Outcome
Sentence reviewed, set aside, and substituted with a fine of R4,000 or three months' imprisonment, antedated to 25 April 2012.
Judges
J. P. Daffue, S. P. B. Hancke
Legal Topics
Immigration Act Offence, Sentencing Review, Illegal Entry, Alternative Sentence
Criminal Law Immigration Act Offence Sentencing Review Illegal Entry Alternative Sentence

Case Brief

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Parties

The State

Applicant

Pius Phemadu

Respondent

Procedural Posture

Review Application / Special Review Under Section 304(4) of the Criminal Procedure Act

Legal Issues

  1. 1 Whether the sentence imposed for contravention of section 49(1)(a) of the Immigration Act was in accordance with justice.
  2. 2 Whether the alternative sentence of four months' imprisonment exceeded the statutory maximum.
  3. 3 Whether the accused's ability to pay the fine was properly considered.

Ratio Decidendi

The sentence imposed by the magistrate was not in accordance with justice because the alternative imprisonment term of four months exceeded the statutory maximum of three months prescribed by section 49(1)(a) of the Immigration Act. Although the accused's ability to pay the fine was not canvassed in the record, the fact that he paid the fine on the day of sentencing rendered reconsideration of the fine unnecessary. The prevalence and seriousness of illegal immigration justified the imposition of the maximum permissible alternative imprisonment term. The sentence was reviewed, set aside, and substituted with a fine of R4,000 or three months' imprisonment, antedated to the original...

Court Disposition

Sentence reviewed, set aside, and substituted with a fine of R4,000 or three months' imprisonment, antedated to 25 April 2012.

Orders

  • The sentence is reviewed, set aside and substituted with payment of a fine in the amount of R4,000 or three months' imprisonment.
  • The sentence is antedated to 25 April 2012.