S v Ramakewana (189/2012) [2012] ZAFSHC 191 (18 October 2012)

S v Ramakewana (189/2012) [2012] ZAFSHC 191 (18 October 2012)

The sentence imposed by the court a quo was not in accordance with justice because it provided for six months' imprisonment as an alternative to the fine, whereas section 49(1)(a) of the Immigration Act prescribes a maximum of three months' imprisonment. The High Court, exercising its review powers, substituted the sentence with a fine of R2,000 or three months' imprisonment, wholly suspended for three years on condition that the accused is not convicted of a similar offence during the period of suspension. The prevalence of the offence and its impact on society justified the sentence, but it had to comply with statutory limits.

Citation
[2012] ZAFSHC 191
Parties
Applicant: The State; Respondent: Teke Ramakewana
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
18 October 2012
Case Number
189/2012
Procedural Posture
Criminal Review / Special Review Under Section 304(4) of the Criminal Procedure Act
Outcome
Sentence reviewed, set aside, and substituted with a lawful sentence.
Judges
J. P. Daffue, S. P. B. Hancke
Legal Topics
Illegal Entry, Immigration Act Offence, Sentencing Review, Suspended Sentence
Criminal Law Illegal Entry Immigration Act Offence Sentencing Review Suspended Sentence

Case Brief

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Parties

The State

Applicant

Teke Ramakewana

Respondent

Procedural Posture

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

Legal Issues

  1. 1 Whether the sentence imposed for contravening section 49(1)(a) of the Immigration Act was in accordance with justice.
  2. 2 Whether the sentence should be reviewed and substituted with a lawful sentence.

Ratio Decidendi

The sentence imposed by the court a quo was not in accordance with justice because it provided for six months' imprisonment as an alternative to the fine, whereas section 49(1)(a) of the Immigration Act prescribes a maximum of three months' imprisonment. The High Court, exercising its review powers, substituted the sentence with a fine of R2,000 or three months' imprisonment, wholly suspended for three years on condition that the accused is not convicted of a similar offence during the period of suspension. The prevalence of the offence and its impact on society justified the sentence, but it had to comply with statutory limits.

Court Disposition

Sentence reviewed, set aside, and substituted with a lawful sentence.

Orders

  • The sentence imposed is reviewed, set aside and substituted with: Payment of a fine in the amount of R2,000 or three months' imprisonment, wholly suspended for three years on condition that the accused is not convicted of contravening section 49(1)(a) of the Immigration Act, 13 of 2002 during the period of suspension.
  • The sentence is antedated to 24 April 2012.