A man found guilty of dealing in dagga has had his conviction and sentence set aside because the magistrate in his trial relied on a law which was deemed unconstitutional almost 30 years ago.

“It is inconceivable that 29 years after this section [of the Drugs and Drug Trafficking Act] was declared unconstitutional, it would still find application in a South African court,” Acting Deputy Judge President of Mpumalanga Takalani Ratshibvumo said in a recent ruling.

He ordered that the judgment be brought to the attention of the Chief Magistrate “to help identify areas in need of training and refresher courses”.

He also ordered court managers in the district to find out why it had taken four months to respond to queries from the review court and to report back to the high court.

Celucolo Michael Mkhonza was convicted by the unnamed acting magistrate in the Mayflower Magistrates’ Court of dealing in drugs in May 2023. He was sentenced to three years’ imprisonment, wholly suspended, and a fine of R5,000, alternatively 24 months in jail.

In September 2023, the matter came before the high court in an automatic review. Queries were sent to the trial magistrate who only responded to them in February 2024.

Judge Ratshibvumo said that from the record of the proceedings it was clear Mkhonza had pleaded guilty to being in possession of 3.26kg of dagga.

Mkhonza had denied that he was “dealing”, saying that someone had given it to him to take to another person.

The magistrate, in handing down judgment, commented that although Mkhonza had “not directly admitted that he was dealing in drugs”, the presumption in the Act was “very clear that the weight of dagga that he was carrying is presumed that he was dealing in drugs”.

The magistrate had been asked to explain how he had come to this conclusion.

In his explanation, he said he had only now realised that that section of the Act, which deemed that a person in possession of drugs over a certain amount was guilty of dealing, had been declared unconstitutional.

Judge Ratshibvumo said almost three decades ago the Constitutional Court, in 1995, had ruled that section unconstitutional and of “no force and effect” because it imposed a “reverse onus of proof” on accused people caught with drugs, contrary to their fair trial rights.

The judge said it was only right that Mkhonza’s conviction and sentence be set aside.

“This may, however, be too little comfort for the accused who may have suffered substantial injustice at this stage,” he said, noting that while Mkhonza had been given a wholly suspended sentence, it was not known if he had paid the additional fine, or had begun serving the 24-month sentence attached to that.

Regarding the excessive delay in the provision of reasons by the magistrate, Judge Ratshibvumo said the magistrate had indicated that he had only received the record from the review court four months after it had been dispatched from the high court.

This delay was unjustified and inexcusable.

“With the advent of technology, requesting and advancing reasons from the trial court should be possible within 24 or 48 hours by means of email communication. Presenting a case for review after the accused has served the sentence defeats the whole purpose of review.

“It is the duty of all officers involved within the Department of Justice and Constitutional Development and the Office of the Chief Justice to give effect to the legislative provision and the court directors meant to protect an accused’s rights.”

He directed that court managers must compile reports within 30 days identifying the source of delay and indicating steps taken to avoid similar delays in future.

Mbekezeli Benjamin of Judges Matter said it was troubling that the magistrate had not known the law.

“It is a basic step in the legal research process to check if the law relied upon is still good law. It is notable that once the concerns were raised with the magistrate, he conceded his error and asked the review judge to correct it. We support Judge Ratshibvumo’s order that the Chief Magistrate identify areas where refresher training might be needed,” he said.

The short answer
No, they may not refuse to register a child’s birth. Here's why.
The whole question
I have a 3-month-old child with a foreign national woman whose visa expired more than 12 months ago. Our child was born in South Africa but is not registered because the Department of Home Affairs refused to do so based on the mother's expired visa. Is a valid visa a determining factor for registering a child?
The long answer
Thank you for your email asking if your child’s mother’s expired visa is grounds for DHA to refuse to register your child.
No, DHA may not refuse to register a child’s birth on the grounds of the legal status of its parents.
In August 2018, the High Court in Grahamstown found that the Births and Deaths Registration Act did not stipulate which parent had the duty to register the birth. The court found that requiring an immigrant parent to produce a valid visa or permit for the registration of the birth of a child, did prevent a father from registering the birth of his child, and this was not what the law intended.
The court found that the father had the right to register his child’s birth, when the mother of the child was either absent, or whose visa had expired, making her an illegal immigrant. The Act also did not prevent an unmarried father from registering his child’s birth.
As the DHA is notoriously slow in acknowledging or implementing court decisions, you could consult the following organisations for assistance

 It was chaos inside Sandton City Mall on Wednesday when authorities from the departments of Employment and Labour as well as Home Affairs conducted raids. Anxious waiters and waitresses were seen hastily fleeing from the opulent eateries located in Africa’s richest square mile in order to avoid arrests. The raids form part of the government of national unity’s strategy to enforce the rule of law in the hospitality sector. Raids conducted in Pretoria this week found some restaurants flouting laws. Ocean Basket and Babel in Menlyn were found to have employed undocumented foreign nationals. According to reports, some of the workers fled in Sandton because they are undocumented foreign nationals. They are working in the country illegally. Blitz started in Tshwane on Tuesday Among the six restaurants in the vicinity that were raided on Wednesday, were Tang and Doppio Zero. The department found that the majority of the establishments paid their staff solely commission and gratuities. Advocate Michael Msiza, the Gauteng chief inspector at the Department of Employment and Labour, said they started the blitz on Tuesday in Tshwane. “At Tang, we found a number of things that were wrong. But the main one is that they have not been paying salaries to their staff members. Staff not paid salaries, no safety precautions in place “They owe their employees! What we need to establish now is the duration of the time that their staff has been working. Calculate that and they have to pay them. This is regardless of their nationality,” he said. Msiza revealed that because of installation safety concerns, gas usage is not permitted at the restaurant. This implies that they must provide evidence that the gas used at the restaurant is safe to use. Until then, they will not operate as usual. “We discovered that the establishment employs about 100 staff members. Half of those are foreign nationals. According to law, companies are not allowed to employ foreign nationals. Unless they can prove that they have a skill that cannot be found in the country. “At this restaurant, they do not have first aiders for such a huge number of workers, that is wrong,” he added. Undocumented Zim national pleads that SA is all the home he has Meanwhile, five restaurant staff, including a manager were apprehended by the police. The manager was found to have employed undocumented foreign immigrants. This after Home Affairs flagged them for invalid work permits. Before getting inside the police van, one Zimbabwean national said South Africa is all he has known for all his life “Yes, I am Zimbabwean, but all I have known is this country. If they take me back to Zimbabwe, who am I going back to there? I came to South Africa at the age of three. And I have a wife and a child, my whole life is here,” he said. He further said he was trying to make ends meet with his job “I was not found by the side of the road trying to rob people, I was at work. Who is going to fetch my child from school now?” The raids will continue until September 20, according to the department.

Home Affairs Minister Leon Schreiber says the next phase of the Smart ID rollout will allow naturalised citizens to apply for the card, followed by permanent residence permit holders.

Both these categories of residents in South Africa have previously been unable to apply for Smart IDs, creating a major stumbling block in the DHA’s plans to modernise the ID system in the country.

Until earlier this year, the Smart ID was only available to born citizens.

As a result, naturalised citizens or permanent residents who had lost, stolen, or damaged green ID books could visit only a handful of offices that still support the issuing of the older document.

In addition, naturalised citizens and permanent residents could not use the Home Affairs online booking system, eHomeAffairs, to apply for passports.

In August, the Department of Home Affairs (DHA) started allowing naturalised citizens to apply for smart ID cards, following a pilot programme running since December 2023.

Schreiber announced that the system was gradually being phased in for naturalised citizens, with close to 700 applications being processed at the time.

Responding to a parliamentary Q&A this past week, the minister said that opening the system to naturalised citizens is part of the second phase of the Smart ID rollout and that permanent residents would soon also be able to apply for the cards.

However, he did not give specific timelines for the rollout of this phase.

“The Department used a phased approach (for the Smart IDs) which focused primarily on persons who are citizens by birth. The second phase will focus on other categories of citizens, e.g., naturalized citizens, followed by permanent residence permit holders,” he said.

“Permanent Residents will be eligible to apply for Smart ID Cards after the Naturalised Citizens have been included in the process flow of issuance of Cards—this would have proven system stability and capability to verify such applications.”

The Department of Home Affairs (DHA) introduced smart ID cards in July 2013 with the intention of phasing out green ID booklets from 2018 to 2022.

However, only 21 million Smart IDs had been issued by the end of 2023.

This means that 42 million people in South Africa would still need to be processed. This would require around 14 million Smart IDs to be issued each year over three years to meet the lofty target (not factoring in various variables like migration, births, deaths, etc).

According to the DHA, it issued 2.6 million smart ID cards against a target of 2.2 million in the 2022/23 financial year.

The new administration delivered the latest budget vote for the department in July. It said it was aiming for 2.5 million smart ID cards to be issued during the 2024/25 financial year.

The Department of Home Affairs took a decision to modernise most of its enabling documents by introducing the Live Capture System in 2013. The intention was to replace the Green Barcoded ID book with the more secure Smart ID Card.

Schreiber has committed to a broader digital-first strategy for the DHA, moving to modernise its systems to be more in-line with tech-forward institutions like SARS.

As South Africa’s economy becomes increasingly integrated with global markets, businesses are seeking foreign talent to fill critical roles. Hiring a foreigner in South Africa is not as straightforward as recruiting a local candidate, however. South African labour law imposes strict requirements that employers and foreign employees must meet to ensure compliance. Employers who fail to adhere to these regulations risk facing penalties, reputational damage or legal action . While the South African business landscape thrives on diversity, under the Immigration Act employers are prohibited from hiring a foreigner unless they possess a valid work visa. Additionally, the Employment Services Act mandates that employers must first ensure that no suitable South African citizen or permanent resident is available to fill the position before considering a foreign worker. These laws aim to balance South Africa’s need for skilled labour with the protection of local workers. When hiring a foreigner, employers should be diligent in gathering these crucial documents: Work Visa: A valid work visa is non-negotiable. The visa must correspond to the type of work the foreigner will be performing (for example general work visa, critical skills visa, intra-company transfer visa). Proof of Qualifications: Employers should verify that the foreign worker possesses the qualifications and skills claimed. In some cases, qualifications obtained abroad may need to be verified through the South African Qualifications Authority (SAQA). Passport: A valid passport with at least 30 days` validity after the intended departure date from South Africa. Proof of Residence: Foreign employees must provide evidence of legal residence in South Africa. This could be a residential lease or proof of accommodation. Employment Contract: A written employment contract outlining the terms and conditions of employment is essential. This contract must align with South Africa’s labour laws and regulations. Skills Transfer Plan: For certain positions, employers must prepare a skills transfer plan to ensure that skills are being transferred to South African employees. Tax Documentation: Employers must ensure the foreigner is registered with Sars and has the appropriate tax clearances in place. Employers who hire foreign nationals without valid work visas may face hefty fines or even imprisonment. Non-compliance with these regulations can result in severe penalties, including fines of up to R100,000. The department of home affairs conducts regular audits to ensure compliance, and businesses found in violation of immigration or labour laws could also be banned from employing foreigners in future. It is therefore crucial for employers to adhere strictly to these legal requirements to avoid legal repercussions and ensure a smooth hiring process. By understanding and complying with these legal requirements, South African businesses can successfully integrate foreign talent into their workforce, driving innovation and growth while staying within the bounds of the law. • Advocate Tertius Wessels is legal director at Strata-g Labour Solutions.