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FREE STATE HIGH COURT, BLOEMFONTEIN

REPUBLIC OF SOUTH AFRICA

Review No.: 227/2011

In the review of:-

THE STATE

and

PHEELLO MICHAEL NTAI

_____________________________________________________

JUDGMENT BY: VAN DER MERWE, J

_____________________________________________________

DELIVERED ON: 12 JANUARY 2012

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[1] The accused person, a citizen of Lesotho, pleaded guilty to the charge set out below. He was however convicted of

“... having been in unlawful possession of an identity document belonging to the Republic of South Africa.”

He was on 5 April 2011 sentenced to a fine of R2 000,00 or twelve months imprisonment, on which date the fine was paid.

[2] I am unable to suppress the expression of dismay at the incompetent handling of this matter and the resultant prejudice to the accused person. As I will show, the charge against the accused did not disclose an offence and the accused was convicted of conduct that he was not only not charged with, but does not constitute a crime. In addition the matter was postponed after conviction and before sentence for a period of approximately three months, for no valid or acceptable reason. During this period the accused remained in custody without bail.

[3] The charge sheet alleges as follows:

“CHARGE: PRODUCE A DOCUMENT PURPORTING TO BE A DOCUMENT ISSUED OR ADMINISTERED BY THE DEPARTMENT OF HOME AFFAIRS NOT ALLOWED TO HAVE IN POSSESSION

That the accused is guilty of the offence of contravening Section 49(9) read with Section 1, of the Immigration Act, Act 13 of 2002

NOW WHEREFORE UPON (OR ABOUT) 29/12/2010 AND at or near BORDER POST

In the district of FICKSBURG the accused unlawfully produced a document issued or administered by the Department of Home Affairs, knowingly he/she is not entitled to have in possession, to wit A LESOTHO PASSPORT WITH NR 142/79 and a South African ID of THOBILE PATRIC NDEBELE with ID no 8305205819084”

The prosecutor subsequently abandoned reliance on the Lesotho passport.

[4] Section 49(9) of the Immigration Act, 13 of 2002, provides as follows:

“Anyone, other than a duly authorised civil servant, who manufactures or provides or causes the manufacturing or provision of a document purporting to be a document issued or administered by the Department, shall be guilty of an offence and liable on conviction to a fine or to imprisonment not exceeding two years.”

It is clear that this section bears no relation to the allegation that the accused produced a document at the border post which he knew that he was not entitled to possess.

[5] The accused said that he obtained the identity document in question by paying a sum of money to a person who then applied for the identity document at the offices of the Department of Home Affairs in Johannesburg and subsequently handed the document to the accused. The indication therefor is that the identity document was validly issued to an actual person.

[6] The accused was adamant that when he attended the South African border post at Ficksburg on his way home, he did not present the identity document and that it was found when his bag was searched. Despite the allegation in the charge that the accused produced the identity document at the border post, he was convicted of unlawful possession of an identity document. The mere possession of an identity document belonging to another person is not a crime. Section 18 of the Identification Act, 68 of 1997, deals with offences and penalties in respect of identity documents. Section 18(1)(d) provides that no person shall, having come into possession of an identity card, a certificate or a temporary identity certificate belonging to another person, present it as his or her own or belonging to any person other than the person to whom it belongs.

[7] The accused pleaded guilty and was convicted on 3 January 2011. His rights in respect of sentence were then explained to him and he fully addressed the court in respect of sentence. During the address of the prosecutor before sentence however, the magistrate postponed the matter to 7 January 2011.

[8] On 7 January the magistrate informed the accused as follows:

“Sir, your case was remanded to today for finalization. Now this Court has come to realize after your conviction that there are two provisions here of the Immigration Act. These provisions provide for the same offence and for the same kind of punishment that may be imposed after conviction upon such an offence. There is an Immigration Act 13 of 2002 under which you have been charged. There is another Immigration Act [indistinct] Immigration Act of 2004. Now this latter act that provides similarly for the same offence, but under a different section. Now that you have been convicted this come forward to the mind of this Court. Now there is no way how to rectify that other than sending this matter on a special review by a Judge with a motivation from this Court as to why it is being so referred, meaning therefore the proceedings are not being initiated any further now for the special review of this matter first to be finalized, which means at this junction this matter has to be remanded to sometime in April because it will have to be transcribed first and then after the transcription it will be returned to this Court and then be send for review to Bloemfontein, hence then the postponement until sometime in April.”

The matter was then postponed to 4 April 2011.

[9] This is inexplicable. The position is simply that some of the provisions of the Immigration Act had been amended, with effect from 1 July 2005, by the Immigration Amendment Act 19 of 2004. In the result the matter was for no reason postponed for a period of approximately three months whilst it was realised that the accused would not be released on bail.

[10] For these reasons the conviction and sentence are set aside.

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C.H.G. VAN DER MERWE, J

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