S v MAFA*

(ORANGE FREE STATE PROVINCIAL DIVISION)

1978 August 10   BRINK and VAN HEERDEN JJ

Prison-Escaping from by a prisoner-Contravention of s 48 (]) (a) of Act 8 of 1959-Sentence-Magistrate cannot order that the sentence for this offence be served simultaneously with a previous sentence the prisoner was undergoing-Application of ss 32 (2) and 48 (2).

The provisions of s 48 (2) of the Prisons Act 8 of 1959 are subject to the provisions of the provisos to s 32 (2) and not also to the introductory portion thereof. 

Where a prisoner is convicted of a contravention of s 48 (1) (a) a magistrate cannot order that the sentence for such contravention should be served simultaneously with a previous sentence which the prisoner was undergoing at the time of his escape.

Review.

VAN HEERDEN J: The accused was rightly convicted in the magistrate's court of a contravention of s 48 (1) (a) of Act 8 of 1959 and sentenced to twelve months' imprisonment. The magistrate further ordered that this sentence had to be served simultaneously with a previous sentence which the accused was undergoing at the time of his escape.

In answer to a review enquiry the magistrate stated that he was competent to grant the order with regard to the concurrent running of the sentences because the provisions of s 48 (2) are made subject to the proviso to s 32 (2), and because the latter subsection authorises a court to order that sentences should run concurrently.

Section 48 (2) reads as follows:

"Any sentence of imprisonment imposed under ss (1) shall commence after the expiry of any sentence the prisoner was then undergoing, but subject to the provisions of the provisos to ss (2) of s 32."

The introductory portion of s 32 (2) provides:

"When a person receives more than one sentence of imprisonment or receives additional sentences while serving a term of imprisonment, each such sentence shall be served the one after the expiration, setting aside or remission of the other in such order as the Commissioner may determine unless the court specifically directs otherwise, or unless the court directs that such sentences shall run concurrently."

Then follow the provisos which are not relevant for present purposes.

It is clear that the provisions of s 48 (2) are subject to the provisos of s 32 (2) and not also to the introductory portion thereof. Therefore the magistrate was not competent to order that the sentences should run concurrently. Cf R v Chamunorgwa 1957 (1) SA 536 (SR); S v Pretorius 1962 (1) PH H57.

The order in terms of which it was ordered that the accused's sentence must be served simultaneously with his previous sentence, is set aside. For the rest the proceedings are confirmed.

BRINK J concurred.

*Applied by L C STEYN J in S v Daniel Motsamai on 12 July 1979. - Eds.