S v Pretorius (A112/09, D26/912/2009, H79/C&, 1439) [2009] ZAECPEHC 56 (8 December 2009)

S v Pretorius (A112/09, D26/912/2009, H79/C&, 1439) [2009] ZAECPEHC 56 (8 December 2009)

The magistrate acted irregularly by further suspending a sentence imposed by a higher court, as he lacked jurisdiction to do so. The proper course is to confirm the conviction and sentence, and order that the sentence run concurrently with any portion of the suspended sentence that may be put into operation. The decision ensures the accused is not prejudiced by further incarceration due to the suspended sentence, and leaves the activation of the suspended sentence to the regional court, should the State pursue it. The magistrate is not empowered to refer the matter to the regional court for consideration of the suspended sentence's activation.

Citation
[2009] ZAECPEHC 56
Parties
Applicant: The State; Respondent: Johnny Pretorius
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
8 December 2009
Case Number
A112/09
Procedural Posture
Criminal Review / Review Judgment
Outcome
Conviction and sentence confirmed; irregular further suspension set aside; firearm declaration confirmed.
Judges
Botha, CJ Eksteen
Legal Topics
Sentencing Procedure, Jurisdiction of Magistrate, Suspended Sentence, Concurrent Sentences
Criminal Law Sentencing Procedure Jurisdiction of Magistrate Suspended Sentence Concurrent Sentences

Case Brief

Summary, issues, holding and outcome

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Parties

The State

Applicant

Johnny Pretorius

Respondent

Procedural Posture

Criminal Review / Review Judgment

Legal Issues

  1. 1 Whether the magistrate had jurisdiction to further suspend a sentence imposed by a higher court.
  2. 2 What is the correct procedure when a suspended sentence from a higher court is implicated in a new conviction.
  3. 3 Whether the sentence imposed should run concurrently with any portion of the suspended sentence that may be put into operation.

Ratio Decidendi

The magistrate acted irregularly by further suspending a sentence imposed by a higher court, as he lacked jurisdiction to do so. The proper course is to confirm the conviction and sentence, and order that the sentence run concurrently with any portion of the suspended sentence that may be put into operation. The decision ensures the accused is not prejudiced by further incarceration due to the suspended sentence, and leaves the activation of the suspended sentence to the regional court, should the State pursue it. The magistrate is not empowered to refer the matter to the regional court for consideration of the suspended sentence's activation.

Court Disposition

Conviction and sentence confirmed; irregular further suspension set aside; firearm declaration confirmed.

Orders

  • The conviction of the accused is confirmed.
  • The sentence imposed by the magistrate is confirmed and ordered to run concurrently with any portion of the suspended sentence imposed on 20 February 2007 that may be put into operation.