S v Ntulini [2010] ZAFSHC 22 (25 February 2010)

S v Ntulini [2010] ZAFSHC 22 (25 February 2010)

The magistrate was not competent to order that the suspended sentence imposed on 14 January 2008 run concurrently with the subsequent sentence of 5 November 2009 or any other sentence. The power to order concurrent running of sentences is reserved for the trial court at the time of sentencing, not for a court considering the activation of a suspended sentence after a subsequent conviction. The order of 7 January 2010 was therefore invalid and must be set aside. The matter is referred back to the magistrate for reconsideration of the request to put the suspended sentence into operation, with consideration for possible further suspension under section 297(7) of the Criminal Procedure Act.

Citation
[2010] ZAFSHC 22
Parties
Applicant: The State; Respondent: Xolani Ntulini
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
25 February 2010
Case Number
71/2010
Procedural Posture
Review Application / Special Review From Magistrate's Court
Outcome
The magistrate's order of 7 January 2010 is set aside in its entirety and the matter is referred back for reconsideration.
Judges
C.H.G. van der Merwe, A. Kruger
Legal Topics
Suspended Sentence, Concurrent Sentences, Criminal Procedure Act, Sentence Enforcement
Criminal Law Civil Procedure Suspended Sentence Concurrent Sentences Criminal Procedure Act Sentence Enforcement

Case Brief

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Parties

The State

Applicant

Xolani Ntulini

Respondent

Procedural Posture

Review Application / Special Review From Magistrate's Court

Legal Issues

  1. 1 Whether a magistrate has the power to order that a previously suspended sentence run concurrently with a subsequent sentence.
  2. 2 Whether the order of the magistrate of 7 January 2010 was competent in law.

Ratio Decidendi

The magistrate was not competent to order that the suspended sentence imposed on 14 January 2008 run concurrently with the subsequent sentence of 5 November 2009 or any other sentence. The power to order concurrent running of sentences is reserved for the trial court at the time of sentencing, not for a court considering the activation of a suspended sentence after a subsequent conviction. The order of 7 January 2010 was therefore invalid and must be set aside. The matter is referred back to the magistrate for reconsideration of the request to put the suspended sentence into operation, with consideration for possible further suspension under section 297(7) of the Criminal Procedure Act.

Court Disposition

The magistrate's order of 7 January 2010 is set aside in its entirety and the matter is referred back for reconsideration.

Orders

  • The magistrate's order of 7 January 2010 is set aside in toto.
  • 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.