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[2010] ZAFSHC 71
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S v Brand (343/2010) [2010] ZAFSHC 71 (29 July 2010)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: 343/2010
In
the matter between:
THE STATE
and
STEVEN BRAND
_____________________________________________________
CORAM:
RAMPAI, J
et
JORDAAN,
J
JUDGEMENT:
RAMPAI J
_____________________________________________________
DELIVERED ON:
29 JULY 2010
_____________________________________________________
[1] The matter came to
this court by way of a special review in terms of
section 304(4)
of
the
Criminal Procedure Act no 51 of 1977
. It originated from the
Boshoff district court.
[2] The historical
background of the matter consists of three specific events. The
accused, a 14-year old teenager, was arrested
at Boshoff on the 17
th
April 2008. He stood trial with three co-accused. He was accused
number 3 in the case. He was on trial in connection with five
counts
of burglary with intention to steal and theft.
[3] The particulars of
the 4
th
charge were that they burglared the building known as Municipal Park
situated in Fontein Street at Boshoff between the 15
th
to the 17
th
April 2008 and that they stole from Tokoloho Municipality, apparently
the owner of the building, goods worth R6800,00. The relevant
case
number was 169/2008.
[4] The accused pleaded
guilty to the aforegoing charge but not guilty to the remaining four.
On 28 August 2008 he was convicted
on his plea. In respect of the
rest, he was acquitted. Therefore, I shall say no more about them.
[5] On the 7
th
November 2008 he was sentenced to 9 months jail term which was wholly
suspended for five years on condition that he was not again
found
guilty of burglary with intention to commit a crime or theft or
robbery or an attempt to commit such crimes during the period
of
suspension. The suspension period was supposed to expire on the 6
th
November 2013. He was sentenced by Mr I H J Gresse.
[6] Just over three
months later, on 13 February 2009 to be precise, the teenager was
once again arrested. On this occasion he
was accused number 1 under
case number 76/2009. His co-accused was a 16-year old teenager. He,
Paul Jansen, was accused number
2. They faced a charge of burglary
with intent to steal and theft.
[7] The particulars of
the charge was that they broke into the house of a certain Mr Piet
Morerni at Soet en Suur in the Boshoff
district on 4 February 2009
where they allegedly stole certain goods as itemised on the annexure
to the charge sheet. The annexure
in question was not before me in
these proceedings. Therefore the value of such stolen goods does not
appear.
[8] Subsequent to his
arrest, the accused finally appeared before Mr I H J Gresse in the
Boshoff district court on the 12 March
2009. Again, he was convicted
on his plea on the same day. The case was then remanded for
sentence.
[9] About two months
later, on the 7
th
May 2009, the accused was sentenced to two years imprisonment in
terms of
section 276(1)(b)
which he was directed to serve at the
youth section of the Kimberley Correctional Facility.
[10] Approximately eight
months after his second conviction, the prosecutor requisitioned him
to appear in court on the 30
th
October 2009. On that day the accused appeared before Mr M
Malangeni. The prosecutor then applied in terms of
section
297(9)(a)(ii)
of the
Criminal Procedure Act, No. 51 of 1977
for the 9
months suspended sentence of imprisonment under case number 169/2008
to be enforced. He proved that the accused had
breached the
condition of suspension on the 12
th
March 2009, long before the period of suspension expired, through his
subsequent conviction under case number 76/09. The matter
was
apparently remanded.
[11] On the 9
th
November 2009, just over 6 months after the imposition of the 2 year
sentence of imprisonment, Mr Malangeni put the suspended sentence
into operation but also directed that such suspended jail term of 9
months should run concurrently with the 2 year jail term which
the
accused was already serving.
[12] The direction of Mr
Malangeni was irregular and therefore incompetent. In her letter to
the deputy director of public prosecutions
dated the 30
th
November 2009 Ms Hayes, the prosecutor concerned, alluded to this
error as did Mr Mokhobo, the control magistrate in Bloemfontein,
in
his letter to the registrar of this division dated the 12
th
July 2010.
[13] The legal position
is that when a subsequent sentence (2 years imprisonment) has already
been imposed in respect of the conviction
which constitutes a breach
of a previously suspended sentence – a court which puts such
previously suspended sentence into
operation cannot direct that it
must be served concurrently with the already imposed unsuspended
sentence. Only a court which
subsequently imposes the unsuspended
sentence can competently direct that its sentence of direct
imprisonment be concurrently served
with a previously imposed but
conditionally suspended sentence –
S
v CHABLALA
1998 (1) SACR 203
(OPD) at par 205a – per Ghimwala AJ,
S
v MOTHIBI
1982 (4) SA 49
at 51B – E (NCD) per Steenkamp, R and
S
v BREYTENBACH
1988 (4) SA 486
(T) at 292E – 293B per Stafford, R. By virtue
of this principle I am inclined to intervene by way of special
review.
[14] Perhaps the
principle sounds like Newton’s law of relativity. Well some
procedural rules may be extrapolated from the
principle in order to
elucidate it.
●
In the first
place there must be a previous conviction (28 August 2008) and a
subsequent conviction (12 March 2009) to constitute
breach of a
suspensive condition. In the instant case, the second conviction,
just like the first, was for burglary, so there
was substantive
connection between the two.
●
In the second
place the prosecution must apply in terms of
section 297(9)(a)(ii)
of
the
Criminal Procedure Act, No 51 of 1977
only after the subsequent
conviction (12 March 2009) for an order to put into operation the
suspended sentence previously imposed
(28 August 2008) on the
accused.
●
In the third
place the suspended sentence must then be put into operation on or
before (but ideally before) the second sentence
(for argument sake
say 6
th
May 2009) is imposed on the accused for the second conviction (12
March 2009) which kick-started
section 297(9)(a)(ii)
application.
●
In the fourth
place the court sentencing (7 May 2009) the accused in connection
with the second conviction must be appraised of
the order in terms of
section 297(9)(a)(ii)
whereby the suspended sentence was put into
operation (say on the 6
th
May 2009). In sentencing the accused such a court will then be
entitled to take into account the fact that the previously suspended
sentence imposed on the accused has now been put into operation.
[15] In the instant case
no such order in terms of
section 297(9)(a)(ii)
existed as on the 7
th
May 2009 when the second sentence was imposed on the accused. The
principle is that the court imposing the second sentence, that
and
only that court, is competent to direct that its own sentence (7 May
2009) should be served concurrently with the first sentence
(28
August 2008) which was previously imposed on the accused but
conditionally suspended.
[17] Where, as in the
this instance, the provisions of
section 297(9)(a)(ii)
were invoked
(9 November 2009) after the second sentence (7 May 2009) has already
been imposed, the court putting such a suspended
sentence into
operation is not competent to direct that such sentence should be
served concurrently with the second sentence the
accused is already
serving.
[18] By law the power to
make such a direction is the absolute prerogative of the court
imposing the second sentence (7 May 2009).
The power of the court
granting an enforcement order in terms of
section 297(9)(a)(ii)
is
strictly confined to making such an order and nothing more.
[19] The practical effect
of the principle is that, on the facts, the suspended sentence in the
instant case was supposed to run
separately on its own after the
expiry of the current unsuspended sentence. These then are some
procedural guidelines. Using
the phrase in a rather loose sense, one
may say the two must run consecutively should the suspended sentence
be put into operation.
That they can no longer run concurrently is
now an accomplished fact.
[20] Accordingly, I make
the following order:
20.1 The suspended
sentence enforcement order of the 9
th
November 2009 made by the district court magistrate and the related
direction that such previously imposed suspended sentence of
the 28
th
August 2008 must run concurrently with the unsuspended sentence
already imposed on the 7
th
May 2009 are hereby set aside.
20.2 The matter is
remitted to the district magistrate court to reconsider afresh the
enforcement application in terms of
section 297(9)(a)(ii)
of the
Criminal Procedure Act
, No. 51 of 1977 in accordance with the
guidelines set out herein should the prosecution still pursue such an
application.
______________
M. H. RAMPAI, J
I concur.
_______________
A.F. JORDAAN, J
/eb