S v Ubisi and Another (A175/15) [2015] ZAGPPHC 131 (13 March 2015)

S v Ubisi and Another (A175/15) [2015] ZAGPPHC 131 (13 March 2015)

The magistrate erred in imposing a custodial sentence under s 112(1)(a) of the Criminal Procedure Act, which only permits a fine. Since no investigation was made into the accused's ability to pay a fine and justice requires finality, the appropriate sentence is a caution and reprimand under s 297(1)(c). The order for deportation is justified under s 34(6) of the Immigration Act, but must be amended to direct immediate deportation, as the custodial sentence was not competent.

Citation
[2015] ZAGPPHC 131
Parties
Applicant: The State; Respondent: Nelson Ubisi; Respondent: James Sithole
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
13 March 2015
Case Number
A175/15
Procedural Posture
Criminal Review / Special Review
Outcome
Convictions confirmed; sentences set aside and substituted with caution and reprimand; immediate deportation ordered.
Judges
Tuchten, M Ismail
Legal Topics
Immigration Act Offence, Sentencing Error, Deportation Order, Special Review Procedure
Criminal Law Immigration Act Offence Sentencing Error Deportation Order Special Review Procedure

Case Brief

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Parties

The State

Applicant

Nelson Ubisi

Respondent

James Sithole

Respondent

Procedural Posture

Criminal Review / Special Review

Legal Issues

  1. 1 Whether the magistrate was competent to impose a custodial sentence under s 112(1)(a) of the Criminal Procedure Act without the option of a fine.
  2. 2 Whether the order for deportation was valid in light of the sentencing error.
  3. 3 What is the appropriate sentence in circumstances where the accused pleaded guilty and no investigation into ability to pay a fine was conducted.

Ratio Decidendi

The magistrate erred in imposing a custodial sentence under s 112(1)(a) of the Criminal Procedure Act, which only permits a fine. Since no investigation was made into the accused's ability to pay a fine and justice requires finality, the appropriate sentence is a caution and reprimand under s 297(1)(c). The order for deportation is justified under s 34(6) of the Immigration Act, but must be amended to direct immediate deportation, as the custodial sentence was not competent.

Court Disposition

Convictions confirmed; sentences set aside and substituted with caution and reprimand; immediate deportation ordered.

Orders

  • The convictions of the accused are confirmed as being in accordance with justice.
  • The sentences imposed upon the accused are set aside and substituted with caution and reprimand.