S v Ntshonyane and Another

• Jurisdiction: South Africa
• Citation: 2015 (2) SACR 70 (FB)

S v Ntshonyane and Another
2015 (2) SACR 70 (FB)

2015 (2) SACR p70

Citation	2015 (2) SACR 70 (FB)
Case No	99/2014
Court	Free State Division, Bloemfontein
Judge	Daffue J and Murray AJ
Heard	August 21, 2014
Judgment	August 21, 2014
Counsel	Information not supplied

Flynote : Sleutelwoorde

G Verdict — Correction of — Charge and conviction of — Contravention of Aliens Control Act 96 of 1991 — Aliens Act had been repealed in entirety by Immigration Act 13 of 2002 — Section 9(4) of new Act was new version of s 23(a) of repealed Act — Although it was doubtful that conviction under s 9(4) could be seen as competent verdict on charge under s 23(a), in H terms of s 54 of new Act anything done under provisions of law repealed by that Act and which could have been done under new Act was deemed to have been done under new Act — No prejudice to accused if conviction and sentence were deemed to have been imposed in terms of new Act.

Headnote : Kopnota

I The two accused were convicted in a magistrates' court of being in South Africa without being in possession of an immigration permit issued in terms of the Aliens Control Act 96 of 1991 (Aliens Control Act) in contravention of s 23(a) of that Act. They were sentenced to a fine of R1500 or three months' imprisonment. Not having the means to pay the fine, the accused were serving the sentence when it was discovered that the Aliens Control J Act had been repealed in its entirety by the Immigration Act 13 of 2002.

2015 (2) SACR p71

The magistrate submitted the matter on special review to the High Court A and requested that the conviction and sentence be set aside.

Held, that s 9(4) was the new version of s 23(a) of the Aliens Control Act even though the sections were far from identical. (Paragraph [25] at 75h.)

Held, however, that apart from the fact that all the essential elements of the offence of contravening s 9(4) were not encompassed in s 23(a), it was doubtful that a conviction under s 9(4) could be seen as a competent B verdict on a charge in terms of s 23(a). (Paragraph [27] at 76b.)

Held, further, that in terms of s 54 of the Immigration Act, anything done under the provisions of a law repealed by ss (1) and which could have been done under the Immigration Act was deemed to have been done under the Immigration Act and there did not appear to be any reason therefore why C the charge could not have been brought in terms of s 9(4) of the Immigration Act. That would entail that the conviction and sentence of the accused in terms of the repealed Act could, in terms of s 54 of the Immigration Act, be deemed to have been imposed on the accused in terms of the latter Act. (Paragraphs [30] and [36] at 76g–h and 77e.)

Held, further, that there would be no prejudice to the accused if their conviction D and sentence were deemed to have been imposed in terms of the Immigration Act and the court accordingly confirmed the conviction and sentence which were deemed to have been imposed in terms of s 9(4) read with ss 49 and 54 of the Immigration Act. (Paragraph [44] at 78g.)

Cases cited

S v Amas 1995 (2) SACR 735 (N): referred to E

S v Busuku 2006 (1) SACR 96 (E): dictum in para [12] applied

S v Carter 2007 (2) SACR 415 (SCA): referred to

S v Cedras 1992 (2) SACR 530 (C): referred to

S v Daniels and Another 2012 (2) SACR 459 (SCA): referred to F

S v Keyser 2012 (2) SACR 437 (SCA) ([2012] ZASCA 70): compared

S v M 1979 (2) SA 167 (T): referred to

S v Mahlangu 2000 (2) SACR 210 (T): referred to

S v Makofane and Another (GNP case No A 1099/09, 10 December 2010): compared

S v Masita 2005 (1) SACR 272 (C): referred to G

S v Mavundla 1980 (4) SA 187 (T): compared

S v Mbatha 1982 (2) SA 145 (N): dicta at 147D – E applied

S v Mei 1982 (1) SA 299 (O): dicta at 303G – H applied

S v Mokoena (TPD case No A 402/2007, 14 May 2007): compared

S v Nkosi 1990 (1) SACR 653 (T): applied.

Legislation cited

Statutes H

The Aliens Control Act 96 of 1991, s 23(a), since repealed by the Immigration Act 13 of 2002

The Immigration Act 13 of 2002, ss 9(4), 49 and 54: see Juta's Statutes of South Africa 2013/14 vol 7 at 4-43, 4-54 and 4-56. I

Case Information

Special review.

Order

The conviction and sentence by the court a quo is confirmed and is deemed to have been imposed in terms of S 9(4) read with ss 49 and 54 of the Immigration Act 13 of 2002. J

2015 (2) SACR p72

Judgment

Murray AJ (Daffue J concurring): A

[1] This is a special review pursuant to the conviction and sentence of the two accused in terms of the Aliens Control Act 96 of 1991, which Act was repealed as a whole by the Immigration Act 13 of 2002.

[2] The additional magistrate, Welkom, requested this court to set aside B the said conviction and sentence since it was imposed in terms of a repealed Act.

[3] The first judge tasked with the review addressed two questions to the court a quo, namely:

'1.

Is this not a case where on review the conviction under the C repealed statute can be replaced by a conviction under the new statute because there is no prejudice to the accused?

[See S v Busuku 2006 (1) SACR 96 (E).]

2.

Under which section of the Immigration Act 13 of 2002 should the accused have been charged?'

D [4] The relevant magistrate replied that the accused in casu should have been charged under s 49(1)(a) of the Immigration Act 13 of 2002, and answered the other question as follows:

'Ad paragraph 1:

The difference that I found between this case and S v Busuku is that the E conviction was based on the contravention of a law that exists, which is contravention of s 51(1) of Act 51 of 1977, the only thing that did not exist was the penalty clause, as penalty was in terms of a repealed law, which is s 48 of Act 8 of 1959, which was replaced by s 117(a) of Act 111 of 1998. It is clear that the conviction was sustained, because all the elements of the offence were met, the offence being contravention of F s 51(1) of Act 51 of 1977. The problem was with the sentence.'

[5] The J4 indicates that both accused in casu upon being convicted were on 13 May 2014 sentenced to payment of R1500 or three months' imprisonment. The magistrate, in her first covering letter of 20 May 2014, reported that the accused elected not to pay the alternative fine and were G both serving their terms of imprisonment.

[6] The charge, as set out in the charge-sheet, was contravention of the provisions of s 23(a) of the Aliens Control Act in that:

'On or about 9 May 2014 at or near Welkom the accused unlawfully and intentionally entered or were found within the borders of the H Republic of South Africa without being in possession of an immigration permit issued in terms of Act 96 of 1991.'

[7] Both accused in court indicated that they understood the charge against them and that they pleaded guilty to the said charge. The court explained to both that they had the right to legal representation, the right to apply for access to witness statements and the right I to apply for bail. It informed them, furthermore, of their right to remain silent and of the consequences of electing not to do so.

[8] In view of the nature of the sentence, namely a fine of R1500 or alternatively three months' imprisonment, there was no need for a J s 112(1)(b) enquiry in terms of the Criminal Procedure Act 51 of

2015 (2) SACR p73

Murray AJ (Daffue J concurring)

1977 (the CPA). The court allowed both accused to lead evidence in A mitigation regarding their sentences. No previous convictions were proved and the said sentence was imposed.

[9] In the case to which the additional magistrate was referred, S v Busuku, [1] the conviction of an accused for contravention of s 51(1) of B the CPA was set aside on review by virtue of the provisions of s 270 of the CPA, and altered to a conviction in contravention of s 117(a) of the Correctional Services Act 111 of 1998.

[10] In the said case the court held that s 270 provided for the alteration of an accused's conviction under an incorrect Act to a conviction under C a...