S v Brand (343/2010) [2010] ZAFSHC 71 (29 July 2010)

S v Brand (343/2010) [2010] ZAFSHC 71 (29 July 2010)

The magistrate's direction that the suspended sentence run concurrently with the unsuspended sentence was irregular and incompetent. The law is clear that only the court imposing the subsequent unsuspended sentence may direct concurrency. Where enforcement of a suspended sentence occurs after the subsequent sentence has already been imposed, the enforcing court lacks authority to order concurrency; the sentences must run consecutively. The suspended sentence enforcement order and the concurrency direction are set aside, and the matter is remitted for proper consideration in accordance with the procedural guidelines outlined.

Citation
[2010] ZAFSHC 71
Parties
Applicant: The State; Respondent: Steven Brand
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
29 July 2010
Case Number
343/2010
Procedural Posture
Criminal Review / Special Review Under Section 304(4) of the Criminal Procedure Act
Outcome
Suspended sentence enforcement order and concurrency direction set aside; matter remitted for reconsideration.
Judges
Rampai, Jordaan
Legal Topics
Suspended Sentence Enforcement, Concurrent Sentences, Criminal Procedure Act Section 297, Review Proceedings
Criminal Law Civil Procedure Suspended Sentence Enforcement Concurrent Sentences Criminal Procedure Act Section 297 Review Proceedings

Case Brief

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Parties

The State

Applicant

Steven Brand

Respondent

Procedural Posture

Criminal Review / Special Review Under Section 304(4) of the Criminal Procedure Act

Legal Issues

  1. 1 Whether the magistrate was competent to order that a suspended sentence run concurrently with an already imposed unsuspended sentence.
  2. 2 What is the correct procedure for enforcing a suspended sentence after a subsequent conviction has occurred.
  3. 3 Which court has the authority to direct concurrency of sentences in these circumstances.

Ratio Decidendi

The magistrate's direction that the suspended sentence run concurrently with the unsuspended sentence was irregular and incompetent. The law is clear that only the court imposing the subsequent unsuspended sentence may direct concurrency. Where enforcement of a suspended sentence occurs after the subsequent sentence has already been imposed, the enforcing court lacks authority to order concurrency; the sentences must run consecutively. The suspended sentence enforcement order and the concurrency direction are set aside, and the matter is remitted for proper consideration in accordance with the procedural guidelines outlined.

Court Disposition

Suspended sentence enforcement order and concurrency direction set aside; matter remitted for reconsideration.

Orders

  • The suspended sentence enforcement order of 9 November 2009 and the direction for concurrency are set aside.
  • The matter is remitted to the district magistrate court to reconsider the enforcement application under section 297(9)(a)(ii) of the Criminal Procedure Act, should the prosecution pursue it.