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[2009] ZAECPEHC 56
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S v Pretorius (A112/09, D26/912/2009, H79/C&, 1439) [2009] ZAECPEHC 56 (8 December 2009)
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LVS
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT. PRETORIA)
NOT
REPORTABLE
CASE
NO: A112/09
DATE:
08 DECEMBER 2009
MAGISTRATE
PRETORIA
Case
No; D26/912/2009 Magistrate’s serial no: H79/C&
High
Court Ref No: 1439
THE
STATE VS JOHNNY PRETORIUS
REVIEW
JUDGMENT
BOTHA
J:
In this matter the
accused was convicted of robbery and sentenced to two years'
imprisonment In addition the magistrate ordered
that a suspended
sentence of 4 years imprisonment imposed on the accused on 20
February 2007 be further suspended for a period
of 5 years.
The conviction is in
order. The sentence as such is also in order. What was irregular was
the further suspension of the sentence
imposed on 20 February 2007.
It was irregular because the correct procedure was not
followed,
but more basically because the magistrate had no jurisdiction to
further suspend a sentence that had obviously been imposed by
a court of higher jurisdiction. The magistrate agrees that the
further
suspension was irregular The state advocates also agree that
it was irregular.
The question is what is
to be done. The magistrate suggests that the matter of the suspended
sentence be referred to the Regional
Court. The state advocates
suggest two possibilities:
(a)
that the sentence of two years imprisonment be confirmed
together with an order that it run concurrently with any portion of
the
suspended sentence of 4 years imprisonment that may be put into
operation; or
(b)
that the conviction be confirmed but the sentence be set aside
and that the matter be remitted to the magistrate so that he can deal
with it in terms of section 116(1 )(b) of Act 51 of 1977, that is to
refer the matter to a regional court for sentence.
In my view the course set
out in paragraph (a) above should be followed It is the leas?
prejudicial to the accused and will as far
as possible give effect to
the original intention of the magistrate that he should not incur
further incarceration on account of
the suspended sentence. Obviously
the suspended sentence can be put into operation, but that is for the
regional court to decide
if the State decides to take the necessary
steps. I may add here that it is not the magistrate s task to refer
the matter to the
regional court for a consideration of whether the
suspended sentence should be put into operation.
The
following order is made:
1.
The conviction of the accused is
confirmed.
2.
The sentence imposed by the magistrate
is confirmed and it is ordered that it should run concurrently with
any portion of the suspended
sentence imposed on 20 February 2007
that may be put into operation.
3.
The order of the magistrate that the
suspended sentence imposed on 20 February 2007 be suspended for
another 5 years is set aside.
4.
The declaration that the accused
is unfit to possess firearm is confirmed.
C
BOTHA
JUDGE
OF THE HIGH COURT
I
agree
CJ
EKSTEEN
ACTING
JUDGE OF THE HIGH COURT