S v Tofana and Others (73/2011) [2011] ZAFSHC 41 (3 March 2011)

S v Tofana and Others (73/2011) [2011] ZAFSHC 41 (3 March 2011)

The court found that the magistrate had exceeded the sentencing jurisdiction by imposing a sentence of a fine of R1500 or 6 months imprisonment, whereas section 49(1)(a) of the Immigration Act only allows for a maximum of a fine or 3 months imprisonment. This constituted a material irregularity in sentencing. The proceedings could not be said to be in accordance with justice, and the sentence was accordingly set aside and substituted with a sentence that complies with the statutory maximum: a fine of R1000 or 3 months imprisonment, suspended for 3 years on condition that the accused are not convicted of contravening section 49 of the Immigration Act during the period of suspension.

Citation
[2011] ZAFSHC 41
Parties
Applicant: The State; Defendant: Canius Tofana; Defendant: Michael Nkamane; Defendant: Isaac Mlambo
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
3 March 2011
Case Number
73/2011
Procedural Posture
Review Application / Special Review
Outcome
The sentence imposed on accused 2, 3, and 4 on Count 2 is set aside and substituted with a sentence compliant with the Immigration Act.
Judges
Ebrahim, Lekale
Legal Topics
Sentencing Irregularity, Immigration Act Offence
Criminal Law Sentencing Irregularity Immigration Act Offence

Case Brief

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Parties

The State

Applicant

Canius Tofana

Defendant

Michael Nkamane

Defendant

Isaac Mlambo

Defendant

Procedural Posture

Review Application / Special Review

Legal Issues

  1. 1 Whether the magistrate exceeded sentencing jurisdiction under section 49(1)(a) of the Immigration Act, 13 of 2002.
  2. 2 Whether the imposed sentence was in accordance with justice.

Ratio Decidendi

The court found that the magistrate had exceeded the sentencing jurisdiction by imposing a sentence of a fine of R1500 or 6 months imprisonment, whereas section 49(1)(a) of the Immigration Act only allows for a maximum of a fine or 3 months imprisonment. This constituted a material irregularity in sentencing. The proceedings could not be said to be in accordance with justice, and the sentence was accordingly set aside and substituted with a sentence that complies with the statutory maximum: a fine of R1000 or 3 months imprisonment, suspended for 3 years on condition that the accused are not convicted of contravening section 49 of the Immigration Act during the period of suspension.

Court Disposition

The sentence imposed on accused 2, 3, and 4 on Count 2 is set aside and substituted with a sentence compliant with the Immigration Act.

Orders

  • The sentence in respect of accused 2, 3, and 4 on Count 2 is set aside.
  • In its place, a sentence of a fine of R1000 or three (3) months imprisonment suspended in whole for a period of 3 years on condition the accused not be convicted of contravening section 49 of Act 13 of 2002, committed during the period of suspension.