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[2016] ZANCHC 10
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E.S v S (CA&R71/16) [2016] ZANCHC 10 (16 September 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
Reportable:
NO
Circulate
to Judges: YES
Circulate
to Magistrates: YES
Circulate
to Regional Magistrates:NO
CASE
NO: CA&R 71/16
DATE
HEARD: 12/09/2016
DATE
DELIVERED: 16/09/2016
In
the matter between:
E.
S.
Appellant
and
THE
STATE
Respondent
Coram:
Olivier
J
et
Mamosebo
J
JUDGMENT
Olivier
J:
[1.]
After
an enquiry as envisaged in section 6(2), read with section 10, of the
Maintenance
Act
[1]
(“
the
Act
”)
the appellant, Mrs E S., was ordered to pay maintenance in the amount
of R1 050.00 per month to the complainant, Mr
E K S., to whom
she was married in community of property. The amount
represented half of the nett monthly income derived
from the renting
out of six dwellings on the premises on which the common home was
situated. At the time of the enquiry the
complainant had
already left the common home, after a marriage relationship of 19
years between him and the appellant.
[2.]
Steps
were never taken to have the maintenance order set aside or amended
and it accordingly remained binding on the appellant
[2]
.
Whether or not it should have been made is therefore not the subject
of this appeal.
[3.]
What
is relevant, however, for purposes of the present appeal is that the
appellant had, in her evidence at the enquiry, adopted
the attitude
that she would not let the complainant have any part of the rental
income, because he was not living at the common
home
[3]
.
[4.]
Remaining
true to her resolve the appellant failed to comply with the
maintenance order and in fact never made a single maintenance
payment
to the complainant. That led to the appellant being charged
with having failed to make payments in accordance with
the
maintenance order, in contravention of the provisions of section
31(1) of the Act.
[5.]
Even
before the charge was put to the appellant it was placed on record,
on her behalf, that she was not willing to pay the maintenance.
[6.]
When
the charge was put to her the appellant pleaded not guilty, but
admitted having failed to comply with the maintenance order.
The complainant then testified that he wanted his “
own
share of what (the complainant) (was) getting
”.
Although it was in cross-examination put to the complainant that the
appellant could not pay the amount of maintenance
“
because
she has to maintain the yard
”,
the appellant never testified and never presented any other
evidence. After the appellant’s legal representative
had
conceded, in address, that the prosecution had proved its case
against the appellant, she was convicted as charged.
[7.]
In
addressing the Magistrate on sentence the appellant’s legal
representative stated unequivocally that the appellant was
not
“
prepared
to pay any amount
”
towards the arrears, despite having been advised by her
representative that she could face a sentence of direct imprisonment.
[8.]
At
that stage the parties were still married, but were separated.
The appellant, whose level of education was only the old
standard 8,
was 40 years old, and had no previous convictions at all. No
children had been born of their marriage.
The appellant was
unemployed, the rental received in respect of the six dwellings being
her only source of income, but it was placed
on record on her behalf
that she was maintaining her sisters.
[9.]
The
appellant’s attorney made no submissions regarding what an
appropriate sentence would be, choosing to “
leave
the possible sentence to the Honourable Court
”.
[10.]
The
Magistrate found that the appellant had in effect, rather than
offering to pay any part of the arrears, “
opted
to go to jail
”
[4]
.
[11.]
The
Magistrate furthermore apparently adopted the attitude that the
incarceration of the appellant would place the complainant “
in
a position to benefit in retrieving
all
his money from the tenants
”
[5]
.
[12.]
The
appellant was sentenced to 12 months imprisonment, but the Magistrate
subsequently granted the appellant leave to appeal against
the
sentence.
[13.]
It
is trite that a court of appeal will only interfere with a sentence
where it is shockingly inappropriate or was the result of
a material
misdirection
[6]
.
[14.]
Mr
Barnard, counsel for the respondent, has in the best traditions of
the advocates’ profession, conceded the existence of
misdirections, in that:
14.1
the Magistrate had failed to consider other sentencing options; and
14.2
the Magistrate had failed to consider other ways to recover the
arrear maintenance.
[15.]
The
Magistrate erred in finding that, because the appellant refused to
tender payment of any part of the arrears, and in fact adopted
the
attitude that she would not comply with the maintenance order, she
had effectively “
opted
”
to be sentenced to direct imprisonment. The appellant’s
stubborn, and arguably event contemptuous, attitude
did not detract
from the fact that other sentencing options did indeed, at least
theoretically, exist.
[16.]
Sentences
like,
inter
alia
,
periodical imprisonment, or even imprisonment in the form of a
sentence of correctional supervision in terms of section 276(1)(i)
of
the
Criminal
Procedure Act
[7]
come to mind
[8]
, both of which
would have been less drastic than a sentence of 12 months
imprisonment.
[17.]
The
absence of “
a
proper enquiry… into the (appellant’s) financial
circumstances
”
resulted in the Magistrate in any event not being able to consider
the imposition of a sentence of imprisonment, suspended
on condition
that the arrears be paid in specified instalments and that the
maintenance order be complied with, which would of
course at least
have afforded the headstrong and obdurate appellant one final
opportunity to avoid prison
[9]
.
[18.]
As
regards recovery of the arrear maintenance, the Magistrate seems to
have overlooked the mechanism provided in section 40 of the
Act, the
consideration of which would, however, also have necessitated an
enquiry into,
inter
alia
,
the “
existing
and prospective means
”
of the appellant.
[19.]
Deliberately
placing the complainant in a position where he could in effect
intercept the rental payments, and effectively appropriate
the
appellant’s share of the rental payments in reduction of the
arrear maintenance, was also in my view wrong. It
would have
resulted in the appellant forfeiting the whole of her share of the
monthly rental income. It was, as already mentioned,
her only
source of income at that stage. Her incarceration would not
have put a stop to her own normal monthly expenses,
inter
alia
in respect of payment of rent, a monthly expense which the
complainant conceded the appellant had. It is not inconceivable
that, if rent is not paid in respect of the common home during the
period of the appellant’s imprisonment, she could lose
the
house, together with not only her only source of income, but also
that of the complainant
[10]
.
[20.]
Even
in the case of a deliberate non-compliance with a maintenance order
direct imprisonment would not as a rule be a desirable
sanction
[11]
.
[21.]
The
Magistrate should, despite the appellant’s refusal to tender
any payments towards recovery of the arrear maintenance,
have
conducted “
a
proper enquiry into the (appellant’s) financial circumstances
in order to ascertain what (she) could reasonably be required
to pay
in respect of the arrears
rather
than what (she) offered to pay
…
”
[12]
.
[22.]
It
follows that I am of the view that the sentence should be set aside.
I agree with counsel that, because of the absence
of proper
information regarding the appellant’s financial circumstances,
the proper order would be to remit the matter to
the Magistrate to
reconsider sentence, after a proper enquiry into the financial
circumstances of the appellant
[13]
.
[23.]
In
the premises the following orders are made:
1.
THE
APPEAL IS UPHELD AND THE SENTENCE IS SET ASIDE.
2.
THE
MATTER IS REMITTED TO THE MAGISTRATE FOR RECONSIDERATION OF SENTENCE,
HAVING REGARD TO THE CONTENTS OF THIS JUDGMENT.
______________________
C
J OLIVIER
JUDGE
NORTHERN
CAPE DIVISION
I
concur.
______________________
M
C MAMOSEBO
JUDGE
NORTHERN
CAPE DIVISION
For the
Appellant:
Adv V Z Nel
(Kimberley
Justice Centre, Legal Aid)
For the Respondent:
Adv T E Barnard
(Office
of the Director of Public Prosecutions, NC)
[1]
99 of 1998
[2]
Compare
S
v Pieterse
1993
(1) SACR 470 (C)
[3]
“
I say Your Worship,
that he will not get any money because he is not staying there
”
(Record: p17/23 – 24)
“
I will not
say anything else Your Worship. I said that he will not get
money, because he is not living there any more
”
(Record: p19/20 – 22)
[4]
Record : p 81/17
[5]
Record: p82/22 – 22
(emphasis added)
[6]
Compare
S
v Kgosimore
1999
(2) SACR 238
(SCA) para [10];
S
v BF
2012 (1) SACR
298
(SCA) para [7]
[7]
51 of 1977
[8]
Compare
S
v November and Three Similar Cases
2006 (1) SACR 213
(C) para [11]
[9]
Ibid
,
para [12]
[10]
Compare
R
v Becker
1951 (2)
SA 162
(T) at 165A – B;
S
v Dadabhai
1969
(3) SA 520
(N) at 522E – H;
S
v Grosch
1993 (2)
SACR 373
(K) at 375b - d
[11]
Compare
S
v Botha
1988 (4)
SA 402
(K) at 406D – H
[12]
Ibid
,
paras [8] and [14] (Emphasis added)
[13]
For purposes of an enquiry in
terms of section 40 of the Act the financial needs and obligations
of the complainant would in fact
also be relevant.