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[2010] ZAFSHC 22
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S v Ntulini [2010] ZAFSHC 22 (25 February 2010)
FREE
STATE HIGH COURT, BLOEMFONTE1N
REPUBLIC
OF SOUTH AFRICA
Review
No. : 71/2010
In
the review between:-
THE
STATE
versus
XOLANI
NTULINI
CORAM:
KRUGER,
J
et
VAN
DER MERWE, J
JUDGMENT
BY:
VAN
DER MERWE, J
DELIVERED
ON:
25
FEBRUARY 2010
[1]
This is a special review emanating from the magistrate's court of
Welkom. It arose in the manner set out below.
[2]
On 14 January 2008 the accused was convicted of dealing in cannabis
in contravention of section 5(b) of Act 140 of 1992 and
sentenced to
a fine of R 4000,00 or ten months imprisonment as well as an
additional twelve months imprisonment suspended for four
years on
condition that the accused is not convicted of contravention of
section 4(b) or section 5(b) of Act 140 of 1992 committed
during the
period of suspension. On 5 November 2009 the accused was convicted of
possession of dagga in contravention of section
4(b) of Act 140 of
1992 and sentenced to twelve months imprisonment. This crime was
committed on 10 June 2009. In the result, on
7 January 2010, the
accused was brought before court in order to consider putting the
suspended sentence of twelve months imprisonment
imposed on 14
January 2008 into operation. The court then put into operation the
suspended sentence but ordered that it is to run
concurrently with
the sentence of twelve months imprisonment imposed on 5 November
2009. The question that arises is whether the
magistrate had the
power to order that the sentence of 14 January 2008 run concurrently
with another.
[2]
Section 280(1)
and (2) of the
Criminal Procedure Act, No. 51 of
1977
provide as follows:
"(1)
When a person is at any trial convicted of two or more offences or
when a person under sentence or undergoing sentence
is convicted of
another offence, the court may sentence him to such several
punishments for such offences or, as the case may be,
to the
punishment for such other offence, as the court is competent to
impose.
(2)
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."
[3]
The "court" referred to in
section 280(2)
is the trial
court passing sentence at the conclusion of the trial". Such
court obviously only passes sentence in respect
of the crime or
crimes for which the accused was charged before it. The power to
order that sentences run concurrently is in respect
of a court of
first instance therefore granted only to a trial court in passing its
sentence at the end of the trial. That court
is therefore empowered
to direct that its sentence run concurrently with another sentence,
including an earlier suspended sentence
which is or may be brought
into operation. It is however not empowered to order that the earlier
suspended sentence run concurrently
with its new sentence or any
other sentence. For the same reason a court before which an accused
is brought in order to consider
the putting into operation of a
suspended sentence after a second sentence constituting the failure
to comply with the condition
of the suspended sentence had already
been imposed, has no power to order concurrent running of sentences.
See:
S
v STRYDOM
1967
(2) SA 386
(N) at 387 C - F:
S
v
MOTHIBI
1982
(4) SA 49
(NC) at 50
B
-
51 C;
S
v GOVENDER
1986
(4) SA 972
(N) at 973 D - J;
S
v
BREYTENBACH
1988
(4) SA 286
(T) at 292 F.
[4]
For these reasons it was not competent for the magistrate to order
that the sentence of 14 January 2008 run concurrently with
the
subsequent sentence of 5 November 2009 or with any other sentence.
There appears to be a good reason to consider further suspension
of
the suspended sentence in terms of
section 297(7)
of the
Criminal
Procedure Act. For
these reasons the whole of the order of the
magistrate of 7 January 2010 must be set aside and the matter be
referred back to the
magistrate for reconsideration of the request
that the suspended sentence of 14 January 2008 be put into operation.
[5]
In the result the magistrate's order of 7 January 2010 is set aside
in
toto
and
the matter is referred back to the magistrate for reconsideration of
the request that the suspended sentence of 14 January 2008
be put
into operation.
C.H.G.VAN
DER MERWE, J
I
agree.
A.
KRUGER, J