S v Rakhongoana and Others (350/2011) [2011] ZAFSHC 159 (22 September 2011)

S v Rakhongoana and Others (350/2011) [2011] ZAFSHC 159 (22 September 2011)

The magistrate imposed sentences exceeding her punitive jurisdiction under the Immigration Act, 2002, by sentencing the accused to R2,000 or 6 months imprisonment, whereas the Act prescribes a maximum of 3 months imprisonment or a fine. The magistrate admitted to inadvertently swapping the sentences intended for the two counts. This irregularity rendered the proceedings not in accordance with justice. The review court set aside the sentences and replaced them with sentences that comply with the statutory limits: for the immigration offence, a fine of R1,000 or 3 months imprisonment for each accused; for the trespass offence, a fine of R2,000 or 6 months imprisonment for each accused.

Citation
[2011] ZAFSHC 159
Parties
Applicant: The State; Respondent: Kebitsamang Rakhongoana; Respondent: Accused 2; Respondent: Accused 3; Respondent: Accused 4; Respondent: Accused 5; Respondent: Accused 6; Respondent: Accused 7; Respondent: Accused 8
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
22 September 2011
Case Number
350/2011
Procedural Posture
Review Application / Special Review
Outcome
Sentences in respect of both counts are set aside and replaced with sentences in accordance with statutory provisions.
Judges
Ebrahim, Kubushi
Legal Topics
Immigration Act Offences, Sentencing Irregularity, Trespass Act Offences
Criminal Law Immigration Act Offences Sentencing Irregularity Trespass Act Offences

Case Brief

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Parties

The State

Applicant

Kebitsamang Rakhongoana

Respondent

Accused 2

Respondent

Accused 3

Respondent

Accused 4

Respondent

Accused 5

Respondent

Accused 6

Respondent

Accused 7

Respondent

Accused 8

Respondent

Procedural Posture

Review Application / Special Review

Legal Issues

  1. 1 Whether the magistrate imposed sentences in accordance with the penal provisions of the Immigration Act, 2002.
  2. 2 Whether the sentencing irregularity rendered the proceedings unjust.
  3. 3 What is the appropriate sentence for contravention of the Immigration Act and the Trespass Act.

Ratio Decidendi

The magistrate imposed sentences exceeding her punitive jurisdiction under the Immigration Act, 2002, by sentencing the accused to R2,000 or 6 months imprisonment, whereas the Act prescribes a maximum of 3 months imprisonment or a fine. The magistrate admitted to inadvertently swapping the sentences intended for the two counts. This irregularity rendered the proceedings not in accordance with justice. The review court set aside the sentences and replaced them with sentences that comply with the statutory limits: for the immigration offence, a fine of R1,000 or 3 months imprisonment for each accused; for the trespass offence, a fine of R2,000 or 6 months imprisonment for each accused.

Court Disposition

Sentences in respect of both counts are set aside and replaced with sentences in accordance with statutory provisions.

Orders

  • Convictions on count 1 in respect of accused 1 to 7 are confirmed.
  • Accused 1 to 7 are each sentenced to pay a fine of R1,000 or undergo 3 months imprisonment.