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[2018] ZAWCHC 59
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S v Karolus (117/18, 13/18, 18352) [2018] ZAWCHC 59; 2018 (2) SACR 398 (WCC) (29 May 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
(Coram:
Dolamo, J
et
Andrews, AJ)
REPORTABLE
High Court
Ref No
:
18352
Magistrate serial no
:
13/18
Case No
: 117/18
STATE
V
VERNON
KAROLUS
REVIEW
JUDGMENT: 29 May 2018
Andrews
AJ
Introduction
[1]
This
is a Review in terms of the provisions of Section 302 of the Criminal
Procedure Act 51 of 1977 (“the Act”).
This matter
was remitted to the High Court in April 2018 in the ordinary course
pursuant to the court
a
quo
imposing a
reviewable sentence.
[2]
The
accused in this matter was arraigned in February 2018 in the
Piketberg Magistrate’s Court on a charge of contravening
section 31(1) of the Maintenance Act 99 of 1998. According to the
charge sheet it is alleged that:
(a)
A maintenance order was made on 29 May 2008 in
terms of which the accused was ordered to make periodical payments of
R300 per month
towards the maintenance of Danlin Daniels;
(b)
The said amount would increase at the rate of 10%
annually;
(c)
The maintenance payments were to be made at the
Magistrate’s Court in the district of Piketberg in favour of
Zetrie Daniels;
(d)
The accused wrongfully and unlawfully during the
period 30 June 2008 to 12 February 2018 failed to make payments in
terms of the
said order; and
(e)
Is in arrears in the amount of R44270.12
[3]
The accused appeared in
person on 26 February 2018 and pleaded not guilty to the charge. The
basis of his defence in terms of section
115(1) of Act 51 of 1977 was
recorded by the presiding magistrate as follows:
‘
The grandmother
came to fetch the money and used it to consume liquor. I told
complainant I will pay money through money market.
I paid her every
week.’
[4]
At
the trial, the prosecutor read a statement in terms of section 212 of
Act 51 of 1977 as deposed to by Corinna Smit
[1]
into the record. According to the statement, the accused failed to
comply with the maintenance order. The accused should have paid
an
amount of R53 430.12, but only paid an amount of R9 160.12.
Accordingly, the accused is in arrears in the amount of R44 270.12
as at 12 February 2018. The statement forms part of the record of
proceedings and was marked as Exhibit “A”.
[5]
T
he state led the evidence of
Zetrie Daniels who testified that the accused made two payments of
R100 each through the money market.
She denied receiving any direct
cash payments from the accused. She stated that the money that the
accused paid was paid into her
account. During cross-examination, the
accused put it to Ms Daniels that in 2017 he was incarcerated. Ms
Daniels indicated that
she was unaware of that.
[6]
The state’s case
was thereafter closed, whereafter the accused testified. He
narrated that he has not been consistently
employed. He explained
that he worked on a farm and work opportunities were seasonal. The
accused stated that he has another sickly
child to support and was
incarcerated for a period of three months. At the time of testifying
he acquired permanent employment
as construction worker in Citrusdal.
[7]
During
cross-examination it came to light that the duration of seasonal work
would be approximately three months. He confirmed that
on 5 September
2016 he worked at De Tuin where he earned R650 per week. At that time
the accused offered to pay an amount of R200
per week. The
accused articulated that shortly after he made the offer the season
finished and because he was employed as
a casual worker the
employment opportunity was not further extended. According to
the accused, he worked at De Tuin for about
four or five months. The
accused conceded that when he was employed during this time, he did
not pay maintenance but could not
provide a reason why he did not do
so. Furthermore, the accused confirmed that on 16 February 2016
he made an arrangement
with the maintenance officer that he would pay
an amount of R584 towards his maintenance obligation. At that time he
was employed
at a farm called Saluka as a peach picker. The accused
indicated that he wasn’t able to afford the amount and only
worked
there for a period of three months. It was also during this
time that his other child was born. The accused was unable to explain
why he did not comply with his maintenance obligation as ordered. He
confirmed that at some point he was employed at Sipo Constructions.
He confirmed that an emoluments attachment order was granted in the
amount of R500 at the time when he was employed at Denne Farm
and
could not offer an explanation as to why he did not pay. The accused
also narrated that the medical needs of his other child
were
prioritised.
[8]
The Magistrate proceeded to convict the accused
as charged and proceeded to sentence the accused to a period of 12
months’
imprisonment.
[9]
Apposite from the Magistrate’s judgment was
the following:
(a)
That the accused was not truthful about him
paying maintenance into the money market account on a weekly basis;
(b)
That the accused had made numerous arrangements
to pay, but failed to do so;
(c)
That the accused failed to pay even during the
times when he was gainfully employed;
(d)
That the accused was unable to offer any defence
as to why he failed to pay in accordance with his maintenance
obligations; and
(e)
That the accused was, in the words of the
Magistrate, ‘
simply unwilling to pay and
are now grasping at excuses for your failure. You are unable to offer
any explanation.’
[10]
When this review came before me I directed a
query to the Magistrate pertaining to both conviction and sentence.
The pivotal consideration
was whether the accused was correctly
convicted and sentenced in accordance with justice.
Legal
Principals
[11]
It
is trite that the institution of automatic review, which is unique to
South African criminal procedure, fulfils an important
function as it
aims to ensure the validity and fairness of the convictions and
sentence in certain categories of lower-court proceedings.
[2]
It is also a developed principle in our law that a reviewing judge is
not limited to the investigation of irregularities but may
also
devote attention to all matters which are subject to appeal.
[3]
[12]
The
powers of the High Court to review proceedings of the Magistrate’s
court are set out in section 304(2) (c) of the Act.
[4]
These powers include, the power to:
‘…
(i)
confirm, alter or quash the conviction, and in the event of
the conviction being quashed where the accused was convicted on one
of two or more alternative charges, convict the accused on the other
alternative charge or on one or other of the alternative charges;
(ii)
confirm, reduce, alter or set aside the sentence or any order
of the magistrate’s court;
(iii)
set aside or correct the proceedings of the magistrate’s
court;
(iv)
generally give such judgment or impose such sentence or make
such order as the magistrate’s court ought to have given,
impose
or made on any matter which was before it at the trial of the
case in question; or remit the case to the magistrate’s court
with instructions to deal with any matter in such manner as the
provincial or local division may think fit; and
(v)
remit the case to the magistrate’s court with
instructions to deal with any matter in such manner as the provincial
or local
division may think fit; and
(vi)
make any such order in regard to the suspension of the
execution of any sentence against the person convicted or the
admission of
such person to bail, or, generally, in regard to any
matter or thing connected with such person or proceedings in regard
to such
person as to the court seems likely to promote the ends of
justice.’
[13]
The first issue for determination is whether the
state succeeded in discharging the burden of proof pertaining to the
offence with
which the accused had been charged. In this regard,
Section 31
of the
Maintenance Act 99 of 1998
provides as follows:
‘
(1) Subject to
the provisions of subsection (2), any person who fails to make any
particular payment in accordance with a maintenance
order shall be
guilty and liable on conviction to a fine for a period not exceeding
three years to such imprisonment without the
option of a fine.
(2) If a defence is
raised in any prosecution for an offence under this section that any
failure to pay maintenance in accordance
with a maintenance order was
due to lack of means on the part of the person charged, he or she
shall not merely on the grounds
of such a defence be entitled to an
acquittal if is it proved that the failure was due to his or her
unwillingness to work or misconduct.’
[14]
In
S
v Chabalala
,
[5]
the Supreme Court of Appeal held that in evaluating evidence before
court the correct approach is to weigh up all the elements
which
points towards the guilt of the accused against all those which are
indicative of his innocence, taking proper account of
inherent
strengths and weaknesses, probabilities and improbabilities on both
sides and, having done so, to decide whether the balance
weighs so
heavily in favour of the State as to exclude any reasonable doubt to
the accused’s guilt.
Evaluation
[15]
It
is trite that no onus rests on the accused to convince the court that
any explanation is beyond any reasonable doubt. If there
is any
reasonable possibility of his explanation being true, then he is
entitled to be acquitted.
[6]
[16]
Based
on this principle I raised the question whether there was any onus on
the accused to offer “any defence”, in light
of the
Magistrate’s finding when he stated ‘
you
are unable to offer any defence for why you have failed to pay your
maintenance.’
The
Magistrate agreed that there was no onus and indicated that because
the accused failed to challenge the evidence it held certain
consequences for the accused. In this regard he referred to the
matter of
S
v Boesak
[7]
where the following was stated:
‘
It
is trit
e
law that a court is entitled to find the State has
proved a fact beyond reasonable doubt if a prima facie case has been
established
and the accused fails to gainsay it…
Of course, a prima
facie inference does not necessarily mean that, if no rebuttal is
forthcoming, the onus will have been satisfied.
But one of the main
and acknowledged instances where it can be said that a prima facie
case becomes conclusive in the absence of
rebuttal is where it lies
exclusively within the power of the other party to show what the true
facts were and he or she fails
to give an explanation…
The state is not
required to plug every loophole, counter every speculative argument
and parry every defence which can be conceived
by imaginative counsel
without a scrap of evidence to substantiate it.’
[17]
I
was also referred to
S
v Cloete
[8]
where the following was stated:
‘
Hierdie
subartikel verwys na twee aspekte van die verweer. Die eerste is “’n
gebrek aan vermoëns”. Die tweede
is die bestaan van
“onwilligheid om te werk of wangedrag”. Wat die tweede
aspek aanbetref is dit myns insiens nou duidelik
dat die bewyslas
hier op die Staat rus…
Die kwessie van die
ligging van bewyslas ten opsigte van die eerste aspek is egter nie
duidelik nie. Aangesien die feite ten opsigte
van so ‘n verweer
normaalweg byna uitsluitlik in die kennisveld van die beskuldigde
val, sou dit sin maak indien hy ook hier
met die bewyslas opgesaal
word.’
[18]
The Magistrate went on to amplify the reasons why
he convicted the accused. He penned the following response to my
query:
‘
In the
Cloete
case it is clear that the Honourable Judge was unsure whether the
accused should be burdened with an onus of prove (sic). I think
it is
now clear that the accused does not carry any burden. The court,
however, made it clear that a defence of a lack of means
to pay
maintenance will normally fall within the exclusive knowledge of the
accused, if an accused then fail to give an explanation
for his
failure to pay, the principles, as lay (sic) down in the
Boesak
case comes in (sic) play. In other words the prima facie
evidence becomes conclusive evidence.
The accused gave
different versions for his failure to make regular maintenance
payments. In his plea he said that he made payments
every week. That
was clearly not true. He only paid R200.00 into the money market.
Then he said he only had work during the different
seasons. When he
was confronted with the fact that he came to make arrangements, he
said that he cannot forward any explanation
and he has no excuse.
Then again he said that he has a son who had to go to hospital for a
head injury. He cannot explain when
and in what way he had to
contribute to any expenses. He even went so far to say that the child
is not well looked after. This
was also never put to the complainant
why he did not pay, he only raised one excuse. He said he was in
prison. He never explained
to the complainant that he had a sick
child or that he had a problem with work. As it was stated in
Boesak
,
it is not required from the state to counter every possible defence.
In the light of his own evidence that he did not have an
excuse for
his failure to pay maintenance and the fact that he lied about the
fact that he paid maintenance every week, I came
to the conclusion
that the accused had no valid defence for not paying maintenance. As
I said in my judgment, it is clear that
the accused is simply
unwilling to pay and now grasping for excuses (sic).
Accused said that he
was in prison. Again he did not say when, but he testified that he
was in prison for 3 months. It is tried
(sic) law that it is not
misconduct if a person fails to pay maintenance due to incarceration.
See
S v Jnguandela
1979 (2) SA 565
(C). I did
take the fact of his imprisonment into account. I said in my judgment
that it was apparent that there was a substantial
period that accused
was in a position to pay and yet failed. The period of 3 months that
he was in prison is such an insignificant
period if one look at the
fact that the accused is in arrears with more than R49 000.00.
For the above reasons I
convicted the accused.’
[19]
It
is trite the state bears the onus to prove the guilt of the accused
beyond
reasonable doubt and that an accused must be convicted only if
the
evidence establishes his guilt beyond reasonable doubt. He must
otherwise be acquitted if his version is reasonably possibly
true.
[9]
In arriving at the decision all the
evidence
must have been taken into account.
[20]
The evidence presented by the state consists of
the
section 212
statement and the
viva voce
evidence of Ms Daniels. It is trite that the
Section 212
statement
serves as
prima facie
proof of the contents. According to the
section 212
statement, the
arrear amount is calculated at R44 270.12. Of seminal importance
is the fact that payments totalling R9160
were made by the accused.
The details of these payments were never canvassed with the
complainant or the accused. The
viva voce
evidence of Ms Daniels only deals with the payments she received via
the money market. The inferential reasoning, although not
expressly
stated appear to have been aimed at challenging the veracity of the
accused’s defence which he disclosed in terms
of
section 115
of
Act 51 of 1977.
[21
]
The Magistrate fails to deal in his judgment with
what the complainant articulated when she presented her evidence in
chief to a
question posed by the prosecutor. In this regard Ms
Daniels was asked who usually collected the money or whether it was
paid into
an account, to which she responded that ‘
it
was paid into an account’
. Which was
followed by the question: “
So you draw
the money, the maintenance money
”, to
which there was no response. Although the transcription is not very
clear, it seems that the complainant confirmed that
she received no
payments during 2017.
[22]
This evidence cannot be viewed in isolation but
should be evaluated on a conspectus of all the evidence, which
includes that which
emanated from the cross-examination. It is
evident that Ms Daniels could not refute that the accused was
incarcerated.
[23]
The
Boesak
case is however clear that a
prima facie
case becomes conclusive in the absence of a rebuttal or where no
explanation is forthcoming. I do not agree with the Magistrate
that
the accused provided no defence or explanation as to why he did not
pay maintenance. In my view, being incarcerated
and not being
employed for a continuous period provides an explanation for the
accused’s inability to pay.
[24]
I am however mindful of the fact that lack of
means is but one component of the test to be applied. As for the
second consideration
being unwillingness to work or misconduct I am
in agreement with the Magistrate’s inferential reasoning that
the accused
could have made payment when he was earning and on his
own version failed to do so.
[25]
Even if the accused was dishonest about him
paying maintenance on a weekly basis as he claimed to do in his
section 115 proceedings,
it remains the duty of the state to
discharge the onus; which in maintenance matters is not without
difficulty. It however remains
trite that the state has to prove each
and every element of the offence with which an accused person is
charged. The process is
often painstaking and laborious and it is for
this reason that more time should be devoted to methodically and
thoroughly ploughing
through the period of non-compliance; which may
encompass a day by day; week by week and/or month by month
interrogation of the
accused ability and/or inability to pay in order
to establish whether he/she had means to comply and/or was unwilling
to work and/or
is guilty of misconduct.
[26]
The way that this matter was dealt with from
start to finish appears to have lacked sufficient ventilation of the
unknown facts
for the Magistrate to come to the conclusion that the
accused was guilty as charged. On the facts presented, this could
never be,
given that the accused did make payments at some point
totalling in excess of R9000; that the accused had unforeseen medical
expenses
and was not gainfully employed for the full duration in
relation to the period over which he had been charged. Additionally,
the
Magistrate acknowledges that he took into account the fact that
the accused was incarcerated. The accused also testified that he
did
not pay as
per
his
undertaking because his employment contract was already nearing the
end at the time when he signed the undertaking. I am of
the view that
the Magistrate’s conclusion that the accused was simply
unwilling to pay and grasping for excuses cannot be
sustained as the
accused provided a reason why he was unable to make payments at that
time. Unfortunately this point, as with many
other aspects, was not
fully interrogated and/or ventilate for the
Magistrate
to unequivocally make this finding.
[27]
In the circumstances the Magistrate should not
have found the accused guilty for the full arrear amount as alleged
in the charge
sheet and should have adjusted the arrears accordingly.
Moreover, the period(s) for which he found the accused guilty should
also
have been clearly
articulated in the
judgment and the finding in this regard should be recorded on the
charge sheet in order to circumvent any future
uncertainty. The
Magistrate’s failure to do so constitutes a material error in
law.
[28]
Additionally I am of the view that
the
Magistrate
materially misdirected himself by applying a
reverse onus. It is not for the accused to prove his innocence. The
failure of the
accused to challenge evidence should also be viewed in
the light of the fact that he was unrepresented and clearly appeared
to
not fully understand what relevant questions to put to the
complainant. The accused should not be penalised for his ability or
failure to do so. In considering the conspectus of the evidence I
find that the conviction was not in accordance with justice and
falls
to be set aside.
[29]
I raised a number of concerns in my query to the
Magistrate in relation to the sentence which was imposed. It was for
this reason
that I felt it prudent to issue a warrant of liberation
on 18 April 2018 ordering the immediate release of the accused who
was
at that time incarnated since 6 March 2018. However, in
light of the conclusion to which I have come, it will not be
necessary
to deal with it for the purposes of this judgment.
[30]
In the result, I would make the following order:
(a)
The conviction and sentence of 6 March 2018 is
set aside.
(b)
The matter is remitted back to the Piketberg
Magistrate’s Court for the proceedings to start
de
novo
before a different Presiding Officer.
__________________________
ANDREWS,
AJ
Acting
Judge of the High Court
I
agree, it is so ordered.
__________________________
DOLAMO,
J
Judge
of the High Court
[1]
A person in the employ of the Department of Justice and
Constitutional Development of the Republic of South Africa and staff
member at the Magistrate’s Court of Piketberg.
[2]
Du Toit et al ‘
Commentary
on the
Criminal Procedure Act’
(Juta
)
[SERVICE 58, 2017] at 30-8.
[3]
ibid.
[4]
Ibid
at
30-16
“
Section
304
not only lays down the procedures to be followed in regard to
automatic review. It also establishes independent review
opportunities, together with its own procedure for submission,
besides the institution of automatic review. But whether the
case comes before a judge via the institution of automatic review or
whether it reaches him by way of the special review ground
and
procedures in
s 304(4)
, the reviewing court has the same power.
In addition,
s 304
makes provision for the review of proceedings
which until recently were dealt with by superior courts, pursuant to
their inherent
powers of review.”;
See
also
Walhaus
and Others v Additional
Magistrate
Johannesburg and Another
1959 (3) SA 113
(A)
,
with regards to the High Court’s inherent powers of review.
[5]
2003 (1) SACR 134
(SCA) at 139I-140B.
[6]
R v Difford
1937 AD at 373:’
It
is not disputed on behalf of the defence, that in the absence of
some explanation, the court would be entitled to convict the
accused. It is not a question of throwing any onus on the accused,
but in these circumstances, it would be a conclusion which
the court
would draw, if no explanation were given. It is equally clear, that
no onus rest on the accused to convince the court
of any explanation
to be improbable, the court is not entitled to convict, unless it is
satisfied, not only, that the explanation
is improbable, but beyond
any reasonable doubt, it is false. If there is any reasonable
possibility of his explanation being
true, then he is entitled to be
acquitted.’
See also
S v V
2000(1) SACR 453 (SCA) at 455A-C where it was held that ‘
[i]t
is trite that there is no obligation upon an accused person, where
the state bears the onus, to convince the court. If his
version is
reasonably possibly true he is entitled to his acquittal even though
his explanation is improbable. A court is not
entitled to convict,
unless it is satisfied not only that the explanation is improbable,
but beyond any reasonable doubt, it
is false. It is permissible, to
look at the probabilities of reasonably possibly true, but whether
one subjectively believes
him is not the test.
’
[7]
[2000] ZASCA 112
;
2000 (3) SA 381
(SCA) at 396D-I.
[8]
2001 (2) SACR 347
(C) at 352A-B.
[9]
S v Van Aswegen
2001 (2) SACR
97
(SCA).