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[2017] ZAFSHC 18
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Kotsoane v S (R05/2017) [2017] ZAFSHC 18 (7 February 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Special
Review No.: R05/2017
In
the review between:
ALFRED
KOTSOANE
Appellant
and
THE
STATE
Respondent
CORAM:
REINDERS,
J
et
NICHOLSON,
AJ
JUDGMENT
BY:
REINDERS,
J
DELIVERED
ON:
7
FEBRUARY 2017
SPECIAL
REVIEW IN TERMS OF SECTION 304(4)
OF
THE CRIMINAL PROCEDURE ACT, 51/1977
[1]
This matter has been sent on special review in terms of Section
304(4) of the Criminal Procedure Act, 51 of 1977 (the “Act”)
from the Phuthaditjaba Magistrate’s Court.
[2]
Mr HB Breyl, Judicial Head (Phuthaditjaba) in a letter attached to
the special review, set out the following summary of the
relevant
circumstances and facts:
“
2.
The accused was convicted and sentenced on 8 November 2016 at
Fouriesburg. The magistrate
from Fouriesburg brought the matter to my
attention and asked for guidance.
i)
The
accused was charged with assault to do grievous bodily harm and
contravening s 3(1) Act 15 of 2013: possession of a dangerous
weapon.
Accused was represented by legal aid and pleaded guilty to both and
the magistrate proceeded in terms of section 112 (1)(a)
of Act 51 of
1977 and convicted him on both counts.
ii)
He
was then sentenced to a fine of R 1 500 or 3 months imprisonment
and a fine of R 300 or 30 days imprisonment respectively
on the two
counts. The magistrate also ordered that the sentences must run
concurrently in terms of s
280 Act 51
of 1977.”
[3]
On 14 November 2016 Mr Breyl addressed a letter to the learned
magistrate, Ms L Mhlambo, indicating that sec 280(2) of the Act
refers expressly only to imprisonment and that he is of the opinion
that she could not have made such an order. Mr Breyl furthermore
indicated that he intended sending the matter on special review and
requested her comments. Ms Mlambo gave her views on the correctness
of the order made by her in terms of s 280(2) of the Act in a letter
dated 12 December 2015, referring to applicable case law.
She
conceded that the order issued by her might not have been correct.
The learned magistrate furthermore indicated that she contacted
Bethlehem Correctional Services and was advised that the accused was
released after paying the fine imposed on him in terms of
count 1
(assault with the intention to do grievous bodily harm).
[4] The bone of
contention is sec 280(2) of the Act which reads as follow:
“
Such
punishments, when consisting of imprisonment, shall commence the one
after the expiration, setting aside or remission of the
other, in
such order as the court may direct, unless the court directs that
such sentences of imprisonment shall run concurrently”
[5]
In the said letter attached to the special review, Mr Breyl referred
to the wording of sec 280 of the Act and applicable case
law,
concluding that he is of the opinion that the magistrate could not
have ordered that the sentences should run concurrently.
Mr Breyl
made reference of
S v Jeffries
2011 (2) SACR 580
(FB)
.
In the said decision of this bench the question whether a court,
where it imposes a fine with alternative imprisonment, can order
a
sentence to run concurrently with another sentence, was dealt with
extensively. The majority of the full bench (Musi, J ,as he
then was,
dissenting) per Kruger, J held in par [12] that the 1993 amendment of
sec 280(2) of the Act made it clear that, where
imprisonment was
imposed as an alternative to a fine, an order that sentences were to
run concurrently, could not be made. Concurrent
running under sec
280(2) could only be ordered where there were sentences of
imprisonment. Alternative imprisonment was not a sentence
of
imprisonment and could never stand alone. Therefore the learned
magistrate
in casu
was bound by this decision and had to
follow it.
[6]
From the sentences imposed it appears that the magistrate did not
intend that the accused should pay more than R1 500,00 and
thus
ordered that the sentences should run concurrently. As noted in the
comment by the magistrate on her enquiries about the accused,
it
appears that the fine of R 1 500,00 was paid by accused with the
Department of Correctional Services, where after he was
released. The
Department most probably did so by virtue of the order in terms of
sec 280. I therefore cannot merely order that
the order of concurrent
running be deleted. If I only delete that, it would mean that the
accused be re-arrested to pay the fine
of R 300,00 on count 2 or
undergo the alternative imprisonment of 30 days.
[7]
Having read the record of the transcriptions together with the
supporting documents thereto and in view of what has been stated
above, I am in agreement with Mr Breyl’s view that an
impermissible sentence was imposed by the learned magistrate Ms
Mlambo.
[8] In the circumstances
I would make the following order:
8.1
The sentences imposed on counts 1 and 2 as well as the order in terms
of
sec 280
of the
Criminal Procedure Act 51 of 1977
is set aside and
replaced with the following:
“
1.
The convictions on counts 1 and 2 are confirmed.
2. Counts 1 and 2 are
taken together for purposes of sentence and the accused is sentenced
to pay a fine of R1 500-00 or 3
months imprisonment.”
______________
C.
REINDERS, J
I
concur.
________________
C.
NICHOLSON, AJ
It
is so ordered.