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[2019] ZANCHC 41
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Papers v S (KAP 17/18) [2019] ZANCHC 41; 2019 (2) SACR 638 (NCK) (30 August 2019)
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IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE HIGH COURT,
KIMBERLEY)
Case No: KAP
17/18
Heard On: 06/05/2019
Delivered: 30/08/2019
In the matter between:
REGINALD
PAPERS
Appellant
AND
THE STATE
Respondent
Coram: Phatshoane J et Pakati J
JUDGMENT ON APPEAL
PAKATI J
[1]
The appellant, Mr Reginald Papers, appeared before
Magistrate JAJ Fourie, in the Douglas Magistrates
Court on
a charge of contravention of section 31(1) of the Maintenance Act
(the Act)
[1]
for failure to pay maintenance in accordance with the maintenance
order dated 26 January 2016. It was alleged that he was
in
arrears of R11 000. He pleaded guilty to the charge and
was thereupon sentenced to undergo thirty months imprisonment
in
terms of section 276(1)(i) of the Criminal Procedure Act (the
CPA)
[2]
.
He was neither ordered to repay the arrear amount of R11 000
nor blacklisted for failure to pay maintenance. He was
also not
declared unfit to possess a firearm in terms of section 103(1)
of the Firearms Control Act
[3]
.
[2] On 26 February
2018 the appellant was granted bail of R500 by the Magistrate,
pending an application for leave
to appeal his sentence. The
application was granted on 12 April 2018. On 30 August 2018
the appellant applied
for leave to appeal against his conviction as
well as condonation for the late launch of the application. The
Magistrate
refused the application. On 13 February 2019
this Court granted condonation for the late filing of the petition
and leave to appeal his conviction after petitioning the Judge
President.
[3] In his
application for leave to appeal the appellant listed two grounds,
summarised as follows:
[3.1] that the trial Court erred in
finding that he admitted all the elements of the offence in his
statement in terms of section 112(2)
of the CPA; and
[3.2] that the court
a quo
erred
in not entering a plea of not guilty in terms of section 113 of the
CPA after the disclosure of a valid defence in mitigation
of
sentence.
[4] In his
statement deposed to in terms of section 112(2) the appellant
recorded:
“
I,
the undersigned, Reginald Ricardo Papers, hereby declare as follows:
1.
I
am the accused in this matter and make this statement freely and
voluntarily, in my sound and sober senses, without undue influence.
2.
I
understand the charge against me and I wish to plead guilty to the
charge of failure to pay maintenance.
3.
During
the period February 2016 and February 2018, in the district of the
above Honourable Court, I unlawfully and intentionally
failed to make
payments of R11 000 (Eleven Thousand Rand) as required by a
maintenance order issued in favour of the complainant
namely, Marie
Barends.
4.
I
admit that on the 29
th
February 2016 I had consented to an amount of R500 (Five Hundred
Rand) maintenance payable per month to the complainant for our
minor
child namely, Remano Barends.
5.
I
further admit that during the above-mentioned period I had failed to
make regular payments as required by the maintenance order.
The total
amount due being R11 000 (Eleven Thousand Rand).
6.
I
also admit that my actions of failing to make the said payments were
unlawful and punishable in law.
7.
I
further admit that I had no right to act as aforesaid. I humbly
apologise for my actions and plead to this [H]onourable [C]ourt
for
leniency when sentencing me”.
[5] After
conviction, Mr Tsuma, who appeared on behalf of the appellant before
the court
a quo
, addressed the Court in mitigation of sentence
and,
inter alia,
stated:
”
Your
worship, it is our respectful submission your worship, that one of
the reasons the accused is convicted today your worship,
was
due to the loss of his permanent employment,
your worship when the maintenance order was granted your worship he
was gainfully employed, your worship”. (Own emphasis)
[6] Mr Tsuma added
that the appellant was in good health and that he was unemployed but
received some income from
his wife, who worked at Geelhuis. He
did odd jobs for the past two months and attended school up to
standard 8 (grade 10
in today’s terms). He does welding
and carpentry. Mr Tsuma indicated that he had no full
instructions regarding
the arrear amount because the appellant had no
fixed income. The appellant was looking for permanent
employment but could
not find it. He requested the Court to
impose a suspended sentence.
[7]
The complainant, Ms Marie Barends, testified that when the order was
made the appellant complied with the
maintenance order until April
2016, and thereafter made one payment in July 2017. She also
confirmed that “
Die
beskuldigde
het
gewerk
,
hy
het
nou November maand het hy die werk gelos
”
[4]
.
It is not clear which year she referred to.
[8] In sentencing
the appellant, the Magistrate considered the following personal
circumstances as placed on record
by Mr Tsuma:
[8.1] he was 31 years old, married
and with five children, whose ages were undisclosed;
[8.2] he did odd jobs from
time to time and earned R150 per day, from which he attempted to make
payments towards maintenance
of the minor child;
[8.3] when the maintenance
order was made he was gainfully employed until November;
[8.4] when being convicted and
sentenced he had been unemployed; and
[8.5] importantly, he was a first
offender.
[9] The Magistrate also
found that the appellant made irregular payments and that according
to the complainant “
he did not lose his job but just left
his job
.” He remarked that the offence was serious as
the children suffered the most. He stated that although the
appellant
was a first offender “
the court is of the opinion
that due to the huge amount in which he is in arrears that he did not
qualify for a suspended sentence.”
[10] Regarding conviction, two
issues, as can be gleaned from the grounds of appeal, arise.
Firstly, whether or not
the court
a qu
o did not commit a
misdirection when it found that the appellant admitted all the
elements of the offence on the strength of the
statement in terms of
section 112(2) and, secondly, whether or not the trial Court erred
when it did not record a plea of not guilty
in terms of section 113
of the CPA, and instead allowed the prosecutor to proceed with the
prosecution after a valid defence had
been disclosed during
mitigation of sentence.
[11] It is important to
establish whether the elements of failing to comply with a
maintenance order in contravention of section
31(1) of the Act had
been proved by the State and whether, in this instance, the name of
the accused against whom the maintenance
order had been made
corresponds substantially to the name of the particular person who
was being prosecuted for an offence under
section 31(1) of the Act.
[12] Section 31(3) provides:
”
(3)
If the name of a person stated in a maintenance order as the person
against whom the maintenance order has
been made corresponds
substantially to the name of the particular person prosecuted for an
offence under this section, any copy
of the maintenance order
certified as true copy by a person who purports to be the registrar
or clerk of the court or other officer
having the custody of the
records of the court in the Republic where the maintenance order was
made, shall on its production be
prima
facie
proof of the fact that the maintenance order was made against the
person so prosecuted.”
[13]
In casu
it is evident
from the record that at no stage did the court
a quo
request
production of a certified copy of the order by the clerk of the court
as
prima facie
proof that the maintenance order had been made
against the appellant. When there is an allegation of failure
to pay maintenance
and the person responsible to pay deposits money
via
the Magistrates office, it is easy to keep track of the
amounts paid and when payment was made. If the money is paid
through
the complainant’s bank account, production of the bank
statements also makes it easy to verify the payments. Both instances
result in the proper and accurate calculation of the arrear amount.
[14] The court
a quo
relied
on the appellant’s admission that there was a maintenance order
against him and that he did not make regular payments.
The
periods in respect of which he was found guilty are not articulated
in the judgment. The Court did not have any
facts at its
disposal to enable it to determine how much arrears had to be paid
taking into account the charges put to him and
the admission he made
regarding the different dates.
[15] One must also consider failure
to make payments as required by the maintenance order. In
Magagula
the court dealt with this in the following terms:
“
(a)
Whether or not at the time of his default he had means to comply with
the maintenance order; or
(b)
Failing (a) above and if he has raised the defence
of lack of means, that the said lack of means was caused
by his own
unwillingness to work, or his misconduct; and [11.4] A guilty mind on
the part of the accused (including knowledge of
unlawfulness),
whether such guilty mind takes the form of a wilful intention not to
comply with the maintenance order, or a constructive
intention to the
same effect, or a negligent failure to comply with it. It may
be proved that his lack of means was caused
by his unwillingness to
work, in which event it is immaterial which of these forms of guilty
mind underlay his unwillingness to
work.”
[5]
[16] The appellant pleaded
guilty and Mr Tsuma, on his behalf, handed in a statement in terms of
section 112(2) of the CPA.
The section provides:
“
(2)
If an accused or his legal adviser hands a written statement by the
accused into court, in which the accused sets out the facts
which he
admits and on which he has pleaded guilty, the court may, in lieu of
questioning the accused under subsection (1) (b),
convict the accused
on the strength of such statement and sentence him as provided in the
said subsection
if
the court is satisfied that the accused is guilty of the offence to
which he has pleaded guilty: Provided that the court may
in its
discretion put any question to the accused in order to clarify any
matter raised in the statement
.”
(Own emphasis)
[17] No questioning in terms
of section 112(1)(b) of the CPA was conducted by the Magistrate. The
following are the
main factors that were admitted by the appellant in
his section 112(2) statement:
[17.1] that the maintenance order
was granted against him on 29 February 2016 obliging him to
pay R500 per month towards
maintenance of his minor child;
[17.2] that
during the period between May 2016 to February 2018 he failed to
comply with the maintenance order dated 26 January
2016 as a result
of which he fell into arrears of R11 000,
[6]
[17.3] that the
appellant had said: “
I
also admit that my actions of failing to make the said payments were
unlawful and punishable in law,”
[7]
and
[17.4]
that the appellant raised a defence of lack of means, as contemplated
in section 31(2) of the Act, as Mr Tsuma had submitted
that the
reason why the appellant could not comply with the order was due to
loss of his permanent employment, yet
,
the Magistrate indicated that he was satisfied that the appellant
admitted the allegations in the charge sheet and found him guilty
as
charged.
[18] In
S v Mshengu,
Jafta JA (Ponnan JA and Mhlantla JA concurring) stated that:
“
Section
112(2) requires that the statement must set out the facts which he
admits and on which he has pleaded guilty. Legal
conclusions
will not suffice. The presiding officer can only convict if he
or she is satisfied that the accused is indeed
guilty of the offence
to which a guilty plea has been
tendered.
If not, the provisions of s[ection] 113 must be invoked”
[8]
.
[19] The
court
a
quo
did not enquire from the appellant whether during the period
mentioned in the charge sheet he had the means with which to pay each
unpaid instalment. In this instance when he raised the defence
of lack of means, no enquiry was held to establish whether
or not it
was due to his unwillingness to work or his conduct.
[9]
However, t
here
was no evidence that the lack of means was attributed to
unwillingness to work or some other misconduct which would render
him
guilty of the offence
.
The
section 112(2) statement is also unavailing in this regard.
The
State
also did not prove that his lack of means was as a result of his
unwillingness to work or any misconduct on his part.
[20] In mitigation of sentence
it was stated that the appellant did odd jobs and earned R150 per day
as indicated earlier.
No detail was furnished as to whether or
not he did the odd jobs throughout the period during which he was not
permanently
employed and how much he contributed towards maintenance
during that period. These issues were not fully interrogated
and
ventilated to substantiate a finding that the appellant was
guilty. What is evident from the record is that he lost his job
in November and made one payment in July 2017 as alluded to earlier.
This information was mentioned for the first time in
mitigation
of sentence and by the complainant just before sentence was passed.
[21] The learned Judge went on
to state the following in
Magagula
:
“
The
next question is whether
element
(4)
of the offence was established. I have already pointed out that
the accused’s admission of his knowledge that it was
unlawful
to fail to comply with a maintenance order, although it established a
necessary part of the element of a guilty mind,
was not sufficient to
establish the whole of that element. What remained lacking,
despite
the accused's so-called ‘admissions’, was an admission,
or evidence, that:
(a)
the
accused had had the
intention
,
wilful or constructive, to fail to comply with the maintenance order;
or
(b)
that
the accused's lack of means, and his failure to comply with the
maintenance order, had been caused by n
egligence
on his part; or
(c)
that
the accused's lack of means had been caused by
unwillingness
on his part to work
.
Therefore
element
(4)
of the offence was not established…”
[10]
[22] In
S
v Lebokeng
[11]
the Court held that the presiding officer should be satisfied not
only that the accused committed the act but that he committed
it
unlawfully and with the necessary
mens
rea
.
In the instant case, same cannot be said in the absence of a
proper investigation of the appellant’s circumstances
regarding
his ability to pay. In my view, it cannot be said that the
State had established a guilty mind on the part of the
appellant as
he did not know that failing to pay maintenance was unlawful and
punishable in law.
[23] Section 113(1) of the CPA
provides:
”
(1)
If the court at any stage of the proceedings under section 112 (1)
(a)
or
(b)
or 112 (2) and before sentence is passed is in doubt whether the
accused is in law guilty of the offence to which he or she has
pleaded guilty or if it is alleged or appears to the court that the
accused does not admit an allegation in the charge or that
the
accused has incorrectly admitted any such allegation or that the
accused has a valid defence to the charge or if the court
is of the
opinion for any other reason that the accused’s plea of guilty
should not stand, the court shall record a plea
of not guilty and
require the prosecutor to proceed with the prosecution: Provided that
any allegation, other than an allegation
referred to above, admitted
by the accused up to the stage at which the court records a plea of
not guilty, shall stand as proof
in any court of such allegation”.
[24]
In casu
it is
clear that the appellant’s statement did not set out facts
which the appellant admitted and on which he pleaded guilty.
The
statement lacked factual basis to substantiate the admissions
tendered. Undoubtedly, the enquiry in terms of section
112(2)
of the CPA was not properly conducted. The court
a quo
ought to have recorded a plea of not guilty in terms of section 113
of the CPA and proceeded with the trial.
[25]
Section 113 can be invoked notwithstanding the fact that the accused
enjoys legal representation.
[12]
However, an appeal Court that is asked to rule that the court
should have invoked section 113 may, where appropriate, take
into
account that the appellant had legal representation at the relevant
time.
[13]
[26]
Southwood J in
Mokonoto
and Others v Reynolds NO and Another
[14]
remarked thus:
”
As
it now reads [section 113(1) of the Criminal Procedure Act], the
section provides for eight distinct situations in which the
court is
required to correct a plea of guilty (shall record a plea of not
guilty). They are—
(1)
where
the court is in doubt whether the accused is in law guilty of the
offence to which he or she has pleaded guilty;
(2)
if
it is alleged to the court that the accused does not admit an
allegation in the charge sheet;
(3)
if
it appears to the court that the accused does not admit an allegation
in the charge-sheet;
(4)
if
it is alleged to the court that the accused has incorrectly admitted
any such allegation;
(5)
if
it appears to the court that the accused has incorrectly admitted any
such allegation;
(6)
if
it is alleged to the court that the accused has a valid defence to
the charge;
(7)
if
it appears to the court that the accused has a valid defence to the
charge;
(8)
If
the court is of the opinion or any other reason that the accused’s
plea of guilty should not stand.”
[27]
In
S
v Morekhure
Hartzenberg J stated:
“…
If
it appears that the accused did earn an income but that there was a
drastic change in his income it may very well be that an
accused
,
although
he is able to pay some maintenance, is unable to pay the full amount
of a court order. Those are the circumstances
where a
magistrate is to convert the proceedings into an enquiry in terms of
s
[
ection
]
41 of
the Act. It is clear that where an accused person raises the
defence of inability to pay, his circumstances must be
investigated.
The presiding officer must determine if the accused had the
means to pay or not. Three possible situations may arise:
1.
The
accused had the means to pay. If his failure to pay cannot be
justified on the basis that he was prevented from paying
through
circumstances over which he had no control he is guilty of the
offence.
2.
The
accused had means to pay a portion of the maintenance but did not
have means to pay all the maintenance. If the prospects
are
that his circumstances will not improve the trial must be converted
to a maintenance enquiry in terms of s
[
ection
]
41
of the Act.
If the prospects are that his circumstances will improve to
such an extent that in future he will be able to comply with
the
order there is no need to convert the proceedings to a maintenance
enquiry. It must however be determined what amount
the accused
ought to have paid. He will be guilty of the offence in respect
of that amount. If and when the amount
of arrear maintenance in
terms of s[ection] 40 of the Act is determined it must not be fixed
in an amount higher than what the
accused ought to have paid.
3.
The
accused did not have means to pay maintenance at all. If the accused
cannot be blamed for his lack of means he is entitled to
an
acquittal
.
If
it appears that the lack of means is to be attributed to
unwillingness to work or some other misconduct he is obviously guilty
of the offence.
In
this matter there was not a proper investigation of the accused's
ability to have paid maintenance during the time when he failed
to do
so. It is also not clear what the circumstances were when he
was previously found guilty of the same offence.
I
am satisfied that the enquiry in terms of s
[
ection
]
112
of Act 51 of 1977 was not a proper one and that the accused should
not have been found guilty. It is also clear that there
ought
to have been an entry of a plea of not guilty in terms of s
[
ection
]
113
when he gave evidence in mitigation and that there should have been a
proper investigation at that stage
.
I am therefore satisfied that the conviction cannot stand.”
[15]
(Own emphasis).
[28]
Regarding
the defence disclosed by Mr Tsuma, in mitigation of sentence, it is
undisputed
that
the appellant was unemployed when he was convicted and therefore
unable to comply with the maintenance order. There is
no detail
as to how much he paid in July 2017 or any other time considering
what he said that he tried to pay maintenance from
time to time when
he did odd jobs.
[29]
Section
31(1) and (2) of the Act provides:
”
(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.
(2) If the 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 defence be entitled to an
acquittal if it is proved that the failure was due to his or her
unwillingness to work or misconduct.”
[30] In the
instant case I am satisfied that
there
was no proper investigation of the accused's ability to pay
maintenance during the time when he failed to do so.
The
complainant’s evidence confirmed that the appellant complied
with the maintenance order until April 2016 and made one
payment in
July 2017. Moreover, the fact that he was unemployed when he
failed to comply with his obligation constituted
a valid defence to
the offence in contravention of section 31(2) of the Act. I am
therefore satisfied that the conviction
cannot stand;
if
he could not be blamed for his lack of means he is entitled to an
acquittal.
[31] It
is pertinent to also refer to section 41 of the Act. This
section
provides:
”
41
Conversion
of criminal proceedings into maintenance enquiry
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”.
[32]
Regarding conversion into an enquiry in terms of section 41 of the
Act, it is a matter of discretion of the trial Court
on the facts of
each individual case. This discretion must be exercised
judiciously. In this case I consider that the
appellant did not
have means to pay at all. It was not appropriate for the Magistrate
to exercise his discretion in the manner
he did, i.e. not converting
the plea to one of not guilty and conducting the proceedings
accordingly. There was no evidence
that
the appellant was able to pay some maintenance and unable to pay the
full amount.
[33] If
evidence is given by or on behalf of an accused for purposes of
sentencing, which is in conflict with an admission
made during the
section 112 proceedings, there is an implied withdrawal of the
admission concerned.
[16]
In this regard I take into account the evidence of the
complainant that the appellant left his job.
[34] In my
view, the Magistrate misdirected himself when he did not record a
plea of not guilty in terms of section 113 of
the CPA in both
instances, and for that reason the appeal against the conviction
ought to be upheld.
As
the conviction must be set aside, the sentence must also be set
aside.
[35]
In the
circumstances I grant the following order:
The
appeal against conviction and sentence is upheld.
B.M. PAKATI
JUDGE OF THE HIGH COURT
NORTHERN CAPE DIVISION, KIMBERLEY
I concur.
MV Phatshoane
JUDGE OF THE HIGH COURT
NORTHERN CAPE DIVISION, KIMBERLEY
For the Appellant:
Mr Steynberg
Instructed by:
LEGAL AID SOUTH AFRICA, KIMBERLEY
For the Respondent:
Adv Mxabo
Instructed by:
OFFICE OF DIRECTOR OF PUBLIC
PROSECUTIONS
[1]
Maintenance
Act,
99 of 1998
.
[2]
Criminal
Procedure
Act, 51 of
1977
.
[3]
Firearms Control
Act, 60 of 2000
.
[4]
English translation: “[t]
he
appellant was employed and he left his job in the month of
November
.”
[5]
S v Magagula
2001 (2) SACR
123
(TPD) at 171a – c (
Magagula
).
[6]
Notably, in his
section 112(2)
statement the appellant admitted having failed to
make payments for the period February 2016 to February 2018.
[7]
Compare
Magagula,
where at paragraph 108
it was held:
“
With
regard to
element
(4)
,
the admission of having had knowledge of the unlawfulness of a
failure to comply with a maintenance order was not enough to
establish the necessary guilty mind. What an admission in this
form failed to establish were the other aspects of
a guilty
mind. In particular, such an admission failed to establish
that the accused's lack of means had been caused by
unwillingness to
work; or that he had a wilful, or a constructive, intention not to
pay the unpaid instalments; or that he had
been negligent in failing
to pay them. Knowledge of unlawfulness was necessary, but not
sufficient, to establish a guilty
mind. It left open the
possibility that the accused might have made that admission because
he was unaware that a mere failure
to comply with a maintenance
order was
not
unlawful and punishable unless it was accompanied by a guilty mind
in the form of a wilful or constructive intention not to comply,
or
in the form of a negligent failure to comply; or unless his lack of
means had been caused by an unwillingness on his part
to work
.”
[8]
S v Mshengu
2009
(2) SACR 316
(SCA) at para 7.
[9]
S v Pieterse
1993 (1) SASV
470 (K);
S
v Sohlezi
2000
(2) SACR 231 (NC).
[10]
Magagula
above on 5 at
para 120.
[11]
S v Lebokeng
en ‘n ander
1978
(2) SA 674
(O).
[12]
See
S
v D en ‘n Ander
1998 (1) SASV 33 (T).
[13]
S v Mbuyisa
2012
(1) SACR 571
(SCA) at para 8.
[14]
Mokonoto
and others v Reynolds NO and another
2009
(1)
SACR
311 (T) 318g – 319a at para 18.
[15]
S v Morekhure
2000 (2) SACR 730
(TPD) at 733b-i.
[16]
Naidoo and
another v De Freitas and others
2013 (1) SACR 284
(KZP) at para 11; see also
S
v Nixon
2000 (2) SACR 79
(W) at 87I-J.