Kotsoane v S (R05/2017) [2017] ZAFSHC 18 (7 February 2017)

Kotsoane v S (R05/2017) [2017] ZAFSHC 18 (7 February 2017)

The court held that the magistrate was not permitted to order that sentences of fines with alternative imprisonment run concurrently under section 280(2) of the Criminal Procedure Act. The statute and binding case law make it clear that concurrency is only available for sentences of imprisonment, not for fines with alternative imprisonment. The magistrate's order was therefore impermissible. However, since the accused had already paid the fine and been released, simply deleting the concurrency order would result in unfairness and possible re-arrest. The court set aside the sentences and replaced them with a single sentence, taking both counts together for sentencing purposes.

Citation
[2017] ZAFSHC 18
Parties
Appellant: Alfred Kotsoane; Respondent: The State
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
7 February 2017
Case Number
R05/2017
Procedural Posture
Special Review / Review of Magistrate's Sentencing Order
Outcome
Sentences and concurrency order set aside; convictions confirmed; counts taken together for sentencing; single fine imposed.
Judges
Reinders, Nicholson
Legal Topics
Sentencing Concurrency, Criminal Procedure Act Section 280, Alternative Imprisonment, Review of Magistrate Decision
Criminal Law Civil Procedure Sentencing Concurrency Criminal Procedure Act Section 280 Alternative Imprisonment Review of Magistrate Decision

Case Brief

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Parties

Alfred Kotsoane

Appellant

The State

Respondent

Procedural Posture

Special Review / Review of Magistrate's Sentencing Order

Legal Issues

  1. 1 Whether the magistrate was permitted to order that sentences of fines with alternative imprisonment run concurrently under section 280(2) of the Criminal Procedure Act.
  2. 2 Whether the sentences imposed were permissible in law given the accused's payment of the fine and release.

Ratio Decidendi

The court held that the magistrate was not permitted to order that sentences of fines with alternative imprisonment run concurrently under section 280(2) of the Criminal Procedure Act. The statute and binding case law make it clear that concurrency is only available for sentences of imprisonment, not for fines with alternative imprisonment. The magistrate's order was therefore impermissible. However, since the accused had already paid the fine and been released, simply deleting the concurrency order would result in unfairness and possible re-arrest. The court set aside the sentences and replaced them with a single sentence, taking both counts together for sentencing purposes.

Court Disposition

Sentences and concurrency order set aside; convictions confirmed; counts taken together for sentencing; single fine imposed.

Orders

  • The sentences imposed on counts 1 and 2 and the order in terms of section 280 of the Criminal Procedure Act 51 of 1977 are set aside.
  • The convictions on counts 1 and 2 are confirmed.