Cape Town - A foreign national who was penalised with an incorrectly imposed fine of R4 000 should have the money reimbursed to him.
So said NPO, the Scalabrini Centre, after the Western Cape High Court ruled that Boumpoutou Richard will have to face the wheels of justice once again as his penalty was not in accordance with the law.
Richard had allegedly presented falsified identification at Cape Town International Airport during September 2018.
From the Democratic Republic of the Congo, Richard had entered a plea and sentence agreement in the magistrate’s court, and according to the high court judgment, the agreement made provision for a sentence of R4 000 or eight months imprisonment.
A request for special review of the matter was granted.
The special review to the court read: “It has now come to my attention that the (Immigration Act) does not provide for the option of a fine only for imprisonment.
“The court, in view of the fact that the charge sheet indicated the option of a fine and the accused with the assistance of his attorney pleaded as such, imposed a sentence which is not in accordance with the law.”
According to the trial court records, Richard was charged in terms of the Immigration Act which states that “(Any person which has in their possession) any fabricated or falsified passport, travel document, identity document or other document used for the facilitation of movement across borders shall be guilty of an offence and liable on conviction to imprisonment for a period not exceeding 15 years without the option of a fine”.
The Scalabrini Centre said foreign nationals, permanent residents and South Africans in criminal matters had all their fair trial rights as afforded by the Constitution.
Legal adviser at Scalabrini, James Chapman, said: “The fine amount should be reimbursed.
“The case will need to be assessed on its merits and if there is a conviction then sentencing will follow.
While rehearing the matter de novo may not seem fair in terms of the accused’s right to a fair and timeous trial this is far better and more just than upholding the conviction and proceeding to reassess sentencing.
“It is important to note that the migrant community is by and large and law-abiding tax paying community and there is only a very small minority that may engage in criminal activity and these individuals will be processed through the criminal justice system in the same way as South Africans would be,” said Chapman.
High Court Judge Matthew Francis said: “In the matter at hand, the parties purported to conclude an agreement which included a sentence that was contrary to the Immigration Act.
As such, the contract between the accused and the State was void and not legally enforceable, from the time that it was created.
The court, unfortunately, perpetuated this error by sanctioning the sentencing agreement.
The entire Agreement was thus ‘poisoned’ by this material error.”
Enquiries to the National Prosecuting Authority (NPA) had not been answered by deadline.
Cape Times