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2012
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[2012] ZAFSHC 33
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S v Lethoko (P38/12) [2012] ZAFSHC 33 (1 March 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : P38/12
In the matter between:-
THE STATE
…..........................................................................
Petitioner
and
CARLWICK MOHAU
LETHOKO
….....................................
Respondent
_____________________________________________________
CORAM:
RAMPAI, AJP
et
PHALATSI, AJ
_____________________________________________________
JUDGMENT BY:
PHALATSI, AJ
_____________________________________________________
DELIVERED ON:
1 MARCH 2012
_____________________________________________________
[1] This is a petition
filed against the order of the magistrate in the regional court for
the division of the Free State, held
at Odendaalsrus, refusing leave
to appeal to this court.
[2] On the 28
th
of March 2006, under case number SCH 56/2004, in the regional court
at Odendaalsrus, the petitioner was convicted on 14 counts
of fraud
and after all 14 counts were taken together for the purposes of
sentence, he was sentenced to 8 (eight) years imprisonment,
5 (five)
years of which were suspended for a period of 5 (five) years, on
condition that the petitioner was not found guilty of
fraud or theft,
or attempt thereto, committed during the period of suspension.
[3] On 1 February 2011,
the petitioner was again convicted on five counts of fraud and
sentenced to imprisonment of 2 (two) years
on each count, in the
district court of Welkom, under case number A756/2010.
[4] On 24 June 2011, the
State brought an application that the 5 (five) years suspended
sentence imposed on the petitioner on 28
March 2006, be brought into
operation, as the petitioner was convicted of fraud on 1 February
2011 during period of suspension,
being within the 5 (five) year
period from the date of sentence.
[5] Mr. Bothma, appearing
on behalf of the petitioner, conceded that the defence did not have
objection against the bringing into
operation of the suspended
sentence, but requested the court to make an order that the 5 (five)
years sentence should run concurrently
with the sentence imposed on
the petitioner on 1 February 2011.
[6] The State requested
the court not to order that the two sentences should run
concurrently.
[7] The court then made
an order that the suspended sentence of 5 (five) years imprisonment
imposed on the 28
th
of March 2006, come into operation on
the day of the order, being 24 June 2011.
[8] The petitioner,
aggrieved by this order, applied for leave to appeal against the said
order.
[9] On 19 October 2011,
the court refused to grant leave to appeal and advised that the
petitioner was free to petition the Judge
President of this court, to
grant him leave to appeal.
[10] The petitioner
apparently accepted this advice and brought the present petition.
[11] Now, it is necessary
to explore what is the effect of the order that is sought to be
appealed against.
[12] As stated, the
petitioner requested that the said suspended sentence should run
concurrently with the sentence imposed on 1
February 2011, which
cumulatively amounts to 10 (ten) years imprisonment.
[13] That sentence
started to run on 1 February 2011.
[14] The 5 (five) years
suspended sentence started to run on 24 June 2011.
[15] It is clear that the
suspended sentence started to run concurrently with the sentence
imposed on 1 February 2011, on the date
on which it was imposed,
being 24 June 2011.
[16] This means that the
court granted the petitioner what he prayed for, and, it was
therefore not necessary that the said order
be appealed against.
[17] The refusal of the
application for leave to appeal by the magistrate was therefore, for
all practical purposes, of no force
and effect.
[18] In the light of the
above, it is clear that this petition was unnecessary.
[19] I therefore make the
following order:
“
The
petition is struck from the roll.”
_________________
N.W. PHALATSI, AJ
I concur.
________________
M.H. RAMPAI, AJP
/sp