S v Nquma and Another (CA&R187/2018) [2018] ZAECGHC 58 (31 July 2018)

S v Nquma and Another (CA&R187/2018) [2018] ZAECGHC 58 (31 July 2018)

The magistrate erred by taking two counts together for purposes of sentence where the offences were subject to different sentencing regimes. The statutory offence of using a motor vehicle without consent carries a prescribed maximum sentence of one year imprisonment, but the sentence imposed was eighteen months, which exceeds the statutory maximum and is therefore incompetent. The practice of taking counts together for sentence is discouraged when the offences are not the same or closely related, especially where statutory maximums apply. The proper procedure, if the intention is to ameliorate the effect of two separate sentences, is to order that sentences be served concurrently. The...

Citation
[2018] ZAECGHC 58
Parties
Applicant: The State; Respondent: Mxolisi Alfred Nquma; Respondent: Luyanda Lurwayi
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
31 July 2018
Case Number
CA&R 187/2018
Procedural Posture
Review Application / Special Review of Sentence Imposed by Magistrate
Outcome
The matter is remitted to the magistrate to reconsider the imposition of sentence on both counts.
Judges
N.P. Jaji, P.T. Mageza
Legal Topics
Sentencing Regime, Counts Taken Together for Sentence, Statutory Maximum Sentence, Concurrent Sentences
Criminal Law Civil Procedure Sentencing Regime Counts Taken Together for Sentence Statutory Maximum Sentence Concurrent Sentences

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Parties

The State

Applicant

Mxolisi Alfred Nquma

Respondent

Luyanda Lurwayi

Respondent

Procedural Posture

Review Application / Special Review of Sentence Imposed by Magistrate

Legal Issues

  1. 1 Whether the sentence imposed by the magistrate was competent in light of statutory maximums.
  2. 2 Whether taking counts together for purposes of sentence was permissible in this case.
  3. 3 What is the proper procedure when offences are subject to different sentencing regimes.

Ratio Decidendi

The magistrate erred by taking two counts together for purposes of sentence where the offences were subject to different sentencing regimes. The statutory offence of using a motor vehicle without consent carries a prescribed maximum sentence of one year imprisonment, but the sentence imposed was eighteen months, which exceeds the statutory maximum and is therefore incompetent. The practice of taking counts together for sentence is discouraged when the offences are not the same or closely related, especially where statutory maximums apply. The proper procedure, if the intention is to ameliorate the effect of two separate sentences, is to order that sentences be served concurrently. The...

Court Disposition

The matter is remitted to the magistrate to reconsider the imposition of sentence on both counts.

Orders

  • The matter is remitted to the magistrate to reconsider the imposition of sentence on both counts.