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[2021] ZAGPJHC 757
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AP v S (A33/2019) [2021] ZAGPJHC 757 (12 August 2021)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GUATENG
LOCAL DIVISION, JOHANNESBURG
Case
number A33/2019
REPORTABLE: YES / NO
OF INTEREST TO OTHER
JUDGES: YES/NO
REVISED.
12/08/21
In
the matter between:
P[....]
A[....]
APPELLANT
AND
THE
STATE
RESPONDENT
Delivery:
This judgment was handed down
electronically by circulation to the parties' legal representatives
by email, and uploaded on caselines
electronic platform. The date for
hand-down is deemed to be 11 August 2021.
Summary:
Appeal against the sentence imposed for failing to
pay spousal and child maintenance. Contravention of section 31(1) of
the Maintenance
Act. Principles governing interference on appeal with
the trial court’s decision restated.
JUDGMENT
Introduction
[1]
The appellant,
Mr P[....], was arraigned before the Krugersdorp District Court (the
court
a
quo
) on
two counts of contravening the provisions of section 31 (1) of the
Maintenance Act, 99 of 1998 (failure to pay maintenance).
[2]
The appellant
was legally represented at the trial wherein he pleaded not guilty to
the charges proffered against him. He was found
guilty and sentenced
on 30 July 2018 as follows:
(a)
count one:
three years' imprisonment.
(b)
count two:
three years' imprisonment.
[3]
The court
a
quo
ordered that the half of the sentence in count two was to run
concurrently with the sentence in count one. The appellant was
therefore
effectively sentenced to four and half years’
imprisonment.
[4]
Aggrieved by
the above outcome, the appellant applied for leave to appeal against
both the conviction and the sentence. He was unsuccessful
and
accordingly petitioned the Judge President, Gauteng Local division in
Johannesburg, for leave to appeal in respect of both
conviction and
sentence. The application for leave to appeal against the sentence
was successful, however, leave to appeal on conviction
was refused.
[5]
The
appeal against the sentence served before this court on 27 February
2020. He successfully applied for a postponement of the
hearing so as
to approach the Supreme Court of Appeal (SCA) in terms of section 16,
(1) of the Superior Courts Act,
[1]
in respect of his conviction.
[6]
The
appellant, who is out on bail, was granted the postponement of the
appeal hearing
sine
die
with
the specific time frames to adhere to concerning his approach to the
SCA. The order made by this court reads as follows:
(a)
The
application for leave to appeal is postponed
sine
die.
(b)
The applicant
is ordered to file his petition with the Supreme Court of Appeal
within two weeks of the date of today.
(c)
As soon as the
outcome of the petition proceedings is made available to the
appellant, he will approach this court within one week
in order to
arrange a date for this matter to the head.
(d)
Both parties
may approach the court for a date.
[7]
The
appellant's petition to the SCA was returned to him due to
noncompliance with the rules. After receipt of the returned
application
from the SCA, the appellant did nothing to prosecute his
appeal for about fifteen months. It is apparent from the
correspondence
that the shortcomings in the application to the SCA
were brought to the appellant's attention during June 2020. It is
also apparent
that the appellant took no steps to move forward with
his application in the SCA.
[8]
It
was only after receipt of the notice of set down on 13 May 2021 that
the appellant took steps to progress his petition before
the SCA.
The
background facts.
[9]
The parties
were married to each other in 1992 and stayed in a house belonging to
the complainant's mother and later registered
in the complainant's
name. The parties have two biological children, namely K[....]2 and
K[....].
[10]
The applicant
was a business entrepreneur who, between 1993 to 1998, purchased and
later sold a number of Spur franchise businesses.
During 2002 he
operated a restaurant, which he converted into RJ's Steak House and
later developed it into an RJ franchise.
[11]
The parties
successfully conducted the RJ's steakhouse business until 2009, when
the appellant instituted divorce proceedings against
the complainant.
The divorce proceedings were acrimonious, with the parties
instituting various court proceedings against each
other. The
appellant gained control of the business following the outcome of the
litigation to the exclusion of the complainant.
[12]
In August
2012, the parties concluded a settlement agreement, in which the
complainant donated half share of her assets in the joint
estate to
the applicant in return for spousal and children maintenance by the
appellant.
[13]
Although the
settlement agreement was not made an order of the court, the
principles contained therein were incorporated into the
divorce
order, particularly the spousal and children maintenance, including
parental rights and responsibilities.
[14]
It is common
cause that the appellant failed to comply with the court order in as
far as the payment of maintenance was concerned.
As a result, he was
charged with the failure to pay maintenance. It was alleged that he
was in arrears in the following amounts:
(a)
in respect of
the children K[....] and K[....]2 – R242 864.90 and,
(b)
for the
complainant R984 000.00
[15]
During the
trial, the essence of the appellant's defence was that he could not
afford to pay maintenance because he had sold his
business. He sold
his business to his fiancée and living-in-partner, Charlene De
Bruyn, for R 6 million. He testified that
after the sale of the
business, he was employed by his fiancée at a monthly salary
of R25,000 per month, which was later
increased to R 30,000.
The
grounds of appeal
[16]
The
applicant contended that the court
a
quo
erred in imposing direct imprisonment and that the four and half
years' imprisonment sentence was excessive. He further argued
that
the court
a
quo
erred
in not converting the trial into an inquiry under
section 41
of the
Maintenance Act.
The
legal principles
[17]
The
extent of the appeal court's powers to interfere with the sentence
imposed by the trial court are circumscribed and limited
to those
instances where it has been shown that the trial court materially
misdirected itself in the manner it dealt with the issue
of the
sentence.
[2]
[18]
In
S v Malgas,
[3]
the court held,
that an appeal court may interfere with the sentence of the trial
court when there is a disparity between the sentence
the appeal court
would have imposed and that imposed by the trial court and this, in
general, is when the sentence can be described
as 'shocking,'
'startling' or 'disturbingly inappropriate.’
[19]
In
dealing with the issue of appeal against sentence, the court in
S
v Pillay,
[4]
said:
"As
the essential enquiry in an appeal against sentence, however, is not
whether the sentence was right or wrong, but whether
the court in
imposing it exercised its discretion properly or judicially, a mere
misdirection is not by itself sufficient to entitle
the Appeal Court
to interfere with the sentence; it must be of such a nature, degree
of seriousness that it shows directly or inferentially,
that the
court did not exercise its discretion at all or exercised it
improperly or unreasonably. Such a misdirection is usually
and
conveniently termed one that vitiates the court's decision on
sentence."
[20]
The above
principle is based upon the consideration that sentencing is
pre-eminently within the trial court's discretion.
Evaluation
[21]
The two main
grounds upon which the appellant sought leave to appeal is based on
are: (a) the alleged failure by the court a quo
to convert the trial
into a maintenance inquiry, and (b) that the sentence was shockingly
inappropriate or was vitiated by misdirection.
[22]
The
main reasons for the contention that the court
a
quo
ought
to have converted the trial into an inquiry were that:
(a)
lack of means
on the part of the appellant was raised during the trial,
(b)
the company
Diamond CC was insolvent.
(c)
The
evidence of the accountant that the business of the appellant was
insolvent was conclusive that the applicant will not be able
to pay
for the maintenance of his erstwhile wife and his child.
[23]
The approach
to adopt when dealing with the first ground of appeal, namely whether
to convert a criminal trial into a maintenance
inquiry is governed by
section 41
of the
Maintenance Act 99 of 1998
, which provides as
follows:
"If
during the course of any proceedings in a magistrate's court in
respect of—
(a)
an offence
referred to in
section 31(1)
; or
(b)
the
enforcement of any sentence suspended on condition that the convicted
person make periodical payments of sums of money towards
the
maintenance of any other person, it appears on good cause shown that
it is desirable that a maintenance enquiry be held, the
court may, of
its own accord or at the request of the public prosecutor, convert
the proceedings into such enquiry."
[24]
During
argument before this court, the appellant's Counsel relied heavily on
the court
a
quo’s
alleged failure to convert the trial into an inquiry. It is submitted
that there was no valid reason why, specifically in light
of a
comment made by the court
a
quo
during
sentence, that the trial was not converted into an inquiry in terms
of
section 41
of the
Maintenance Act. The
court
a
quo
made
the following comment during the sentencing judgment when it said:
"I
should have interjected at the time, but having understood that
section 41
allowed for the prosecutor and for the defence to ask for
the conversion of this matter at any stage, I did not intervene and
say,
you know what I think this is unfair. It is unfair to expert the
witness to accept this, or unfair on the witness to be battered
in
this way. But the . . . she stood her ground and placed her faith in
the process she set in motion."
[5]
[25]
Firstly,
it is apparent from the reading of the judgment that the
court
quo
rejected
the appellant’s version that he could not afford to pay
maintenance. This means that the issue of converting
the trial at the
level of sentencing into an inquiry did not arise. In other words,
there was no basis for converting the proceedings
into a maintenance
inquiry after conviction.
[26]
Secondly,
there is nothing in the reading of the judgment upon which it can be
discerned that the court
a
quo
formed
a view that ‘good cause’ existed to convert the trial
into a maintenance inquiry. In fact, the magistrate’s
comment
referred to above, when read in context, related to his decision to
allow certain questions that would ordinarily be excluded.
[27]
Thirdly,
the contention that the court
a
quo
should
have considered the conversion is further unsustainable when regard
is had to the finding that the non-payment of maintenance
was wilful
on the part of the appellant. The court
a
quo
found
that the appellant did not even attempt to make payment for the
amount he could afford.
[28]
In
conclusion, as a result of the court
a
quo’s
factual findings, the question whether or not the court should
exercise its power to convert the criminal trial into a maintenance
enquiry, never arose.
Was
the sentence inappropriate or vitiated by misdirection?
[29]
The maximum
sentence to impose in a case of failure to pay maintenance is
governed by the provisions of
section 31
of the
Maintenance Act,
which
reads 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 of an offence and liable on conviction to a fine or
to imprisonment for a period not exceeding
three years or to such
imprisonment without the option of a fine."
[30]
As indicated
earlier, the appellant was charged with two counts of contravention
of
section 31
of the Maintenance Act relating to failure to pay
maintenance for both his erstwhile wife and the child. The appellant
was found
to have failed to pay the maintenance in the amount of R1
226869.90 over approximately four years.
[31]
It
is apparent from the reading of the judgment that the court
a
quo
took
into account the sentencing guidelines set out in S v Zinn,
[6]
which is, the personal circumstances of the appellant, the
seriousness of the offences and the interest of society.
[32]
The
court
a
quo
took
into account the circumstances of the appellant when imposing the
sentence. He was 53 years old and resided with his
fiancée Ms.
De Bruyn. At the time of his arrest, Ms. De Bruyn was pregnant with
his other child, who was born whilst he
was in prison.
[33]
The court
a
quo
also
took into consideration that the failure to pay maintenance affects
the most vulnerable members of the community, namely women
and
children, and that the rights of children are
specifically
protected by section 28(1)(e) of the Constitution which
guarantees the rights of the child to,
inter
alia
, be
'protected from maltreatment, neglect, abuse and degradation'.
[34]
Both
children, K[....] and K[....]2, were the subject of the maintenance
order. In considering the impact of the offence on K[....]2
the
court
a
quo
found
that he was treated differently from K[....]. Consequent to the
failure to pay maintenance, K[....]2 had to move from
place to place
looking for accommodation from the age of 13 years. The appellant was
further aware that his failure to pay maintenance
had resulted in the
complainant and K[....]2 going without food and electricity. On the
other hand, K[....] enjoyed overseas trips
to celebrate his birthday.
[35]
The court
a
quo
took
into account that the appellant stopped complying with the
maintenance order only after a few months of that order. The decision
to stop payment of the maintenance was found to be wilful and
well-orchestrated. The court
a
qu
o
further took into account the threats and underhanded methods used by
the appellant in an attempt to force the complainant to
accept a
settlement offer lower than that she was entitled to in terms of the
maintenance order.
[36]
The
court
a
quo
also noted that the appellant spent money on non-essential things,
instead of abiding by the maintenance order. He made no attempt
to
contribute to the outstanding maintenance whilst maintaining a
luxurious life for himself. The court stated that the appellant
had
several opportunities to rectify the situation he had created, but
failed to do so.
[37]
These findings
referred to above, support the view that the only appropriate
sentence under the circumstances was a custodial sentence.
The court
a quo
imposed the maximum sentence, namely six years. Although the
applicant's Counsel contended that the sentence was excessive, he
conceded that custodial sentence was appropriate. He however claimed
that the most appropriate sentence would have been one month’s
imprisonment. I do not agree with that proposition for the reasons
set out above, including the following.
[38]
The
offence committed and the specific circumstances of this case is
serious and thus warranted the sentence imposed. As alluded
to
earlier, the applicant's conduct drove his child and erstwhile wife
into poverty. This is in the context where he had agreed
and obtained
an order to the effect that he would pay maintenance for the
complainant and his child. The appellant's case is aggravated
by the
fact that throughout the proceedings, including after conviction, he
showed no remorse. As stated in S v Visser:
[7]
"Effective
enforcement of maintenance payments is necessary not only to secure
the rights of children, but also to uphold the
dignity of women and
promote the constitutional ideals of achieving substantive gender
equality. It is therefore important that
courts regard deliberate
failures to comply with maintenance orders as serious offences and
punish such failures accordingly."
[39]
It was further
argued on behalf of the appellant that at some stage the court
a
quo
had
restorative sentence in mind. I do not agree with this proposition.
It is apparent that the comment made about restorative sentence
was
simply part of the consideration of assessing an appropriate sentence
to impose.
[40]
The
view that the sentence was fair is further reinforced by the order
that one of the counts for which the appellant had been found
guilty
should run concurrently with the other.
Conclusion
[41]
In
Director of Public Prosecutions KwaZulu Natal v NCOBO and others,
[8]
the court said:
"[22]
Traditional objectives of sentencing include retribution, deterrence
and rehabilitation. It does not necessarily follow
that a shorter
sentence will always have a greater rehabilitative effect.
Furthermore, the rehabilitation of the offender is but
one of the
considerations when the sentence is being imposed. Surely, the nature
of the offence related to the personality of the
offender, the
justifiable expectations of the community and the effect of a
sentence on both the offender and society are all part
of the
equation? Pre and post Malgas, the essential question is whether the
sentence imposed is in all the circumstances, just."
[42]
The
appellant has failed to make out a case that the sentence imposed on
him was inappropriate and shocking to justify interference
by this
court. There is no evidence on the record to suggest that the court
a
quo
committed an irregularity or misdirected in imposing the custodial
sentence on the applicant. In the circumstances the sentence
imposed
on the appellant was is fair and appropriate. Accordingly, the
appellant's appeal stands to fail.
Order
[43]
In the
circumstances, the following order is made:
1.
Mr P[....]’s
appeal is dismissed.
2.
Mr
P[....] is ordered to submit himself to the Krugersdorp Correctional
Centre within 5 (five) days from the date that this order
is served
on him.
3.
In the event
Mr P[....] does not submit himself to the Krugersdorp Correctional
Centre as ordered in paragraph 2 (two) above the
South African Police
Service must within 3 (three) days of the expiry of the date in
paragraph 2 (two) take all the necessary and
permissible steps in law
to ensure that Mr P[....] is delivered to the Correctional Centre in
Krugersdorp in order for him to commence
serving his sentence.
E
MOLAHLEHI
Judge
of the High Court,
Gauteng
Local Division, Johannesburg
I
agree
L
WINDELL
Judge
of the High Court,
Gauteng
Local Division, Johannesburg
Representatives:
For
the appellant:
Adv Schalk van Der Sandt
Instructed
by:
GM Parker Gibbens Attorneys
For
the respondent:
Adv SH Rubin for the NPA.
Date
of hearing:
21 May 2021
Date
of delivery:
12 August
2021
[1]
Act
number 10 of 2013,
[2]
See
Director
of Public Prosecutions v Mngoma (404/08) [2009] ZASCA 170; 2010 (1)
SACR 427 (SCA) ; [2010] 2 All SA 456 (SCA) (1 December
2009).
[3]
(117/2000)
[2001] ZASCA 30
;
[2001] 3 All SA 220
(A) (19 March 2001).
[4]
[1977]
4 All SA 713
(A)
717;
1977
(4) SA 531
(A)
535E-G.
[5]
See
page
1019 – line 17 of the Record.
[6]
1969
(2) SA537 (A) at 537-540G.
[7]
2004
[1] SA CR 393 [SCA] at 399 E – F.
[8]
2009
[2] SA. R. CR 361 [SCA] at paragraph 22.