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[2015] ZAGPPHC 829
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S v Seseane (A557/15) [2015] ZAGPPHC 829 (18 August 2015)
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
(GAUTENG
DIVISION, PRETORIA)
High Court reference
number: 339/15
Case
number: A401/14 Magistrate's serial number: 06/15
18/8/2015
In
the matter between:
THE
STATE
and
THABO
NICODEMUS SESEANE
REVIEW
JUDGMENT
Bagwa
J
[1]
This matter has been brought by way of special review in terms of
Section 304 (4) of The Criminal Procedure Act 51 of 1997 after
it was
discovered that
the
recording of the sentence did not accurately reflect the correct
legal position in terms of the law.
[2]
The facts are briefly as follows. The accused was charged for
contravening
Section 31(1)
of the
Maintenance Act 99 of 1998
in that
the accused being a person against whom a court of law, namely the
Transvaal Provincial Division
of
the High Court, made a maintenance order as part of the divorce order
on 18 September 2002 as follows:
1)
The amount
of
maintenance
of
R
11
000.00
per
month calculated
as follows: R4 000.00
per month
in respect
of the
minor
child
M S; R6 000.000
in
respect of the
complainant
K
L S
and R1 100.00
towards the
medical
aid
expenses of
the
complainant K L S.
2)
The
accused
was
to
keep
the
minor
child
M S
registered
in
his medical
aid and
settle
any shortfall
in respect thereof.
3)
The accused had
to pay
all
the
reasonable and necessary, dental, opthalmic,
pharmaceutical
expenses
incurred
for
and
on
behalf of
M S.
4)
The accused
had
to pay
for all reasonable school
expenses
incurred by M S
to
attend
a
private
school which
inter
alia
include
costs
of
school
fees,
uniform,
extramural
and
extra
lessons;
all
payments
were
to
be effected
before or on the first
day
of every
month.
[3]
The accused had wrongfully and unlawfully failed during the period
July 2003 to May 2014 to comply with the Court order and
had
accumulated arrears the first amount being R435 200.00 for the period
29 July 2006 to June 2011 and the second amount being
R138 600.00,
for the period December 2011 to May
2014.
The total outstanding was R573 800.00.
[4]
The accused pleaded not guilty but was subsequently convicted and
sentenced as follows:
"The
court orders that the following monies should be attached and paid to
the complainant immediately, namely:
1.
An
amount
of R182
827.
69 from
Momentum
Policy
number
[…]
2.
The
amount of R33 874.83
from
Momentum Policy number […].
The
policies
that
relates
(sic) to the life
cover
incorporating
the insurance
on
property
together
with
the insurance
on
the
child's
education
will not
be part of this
sentence,
but
the
above
amounts
that
I mentioned
with specific
policy numbers, the
amount
of
R182
827.69;
R33 874.83
from
Momentum
Policy (sic)
should be attached
and paid
directly
to the
complainant.
3.
Over and
above
the
existing
order
of
R11
500.
00,
the
accused
is
ordered
to
pay
a
sum
of
R4
000.00
to
reduce
the
outstanding
arrears
of
maintenance.
The first payment
to be effected from the
28
th
of February
2015
and not later than
the
7
th
of each
and
every
month
subsequently.
4.
Should
accused fail to comply
with
the
above orders,
the
accused shall serve
an
effective
18
monthsimprisonment."
[5]
The accused was legally represented during the court proceedings and
did not note an appeal.
[6]
Section 40
(1) of Act 99 of 1998 reads as follows:
"40 (1) A court
with civil jurisdiction convicting any person of an offence under
Section 31 (1) may, on the application of
the public prosecutor and
in addition to or in lieu of any penalty which the court may impose
in respect of that offence, grant
an order for the recovery from the
convicted person of any amount he or she has failed to pay in
accordance with the maintenance
order, together with any interest
thereon, whereupon the order so granted shall have the effect of a
civil judgment of the court
and shall, subject to Subsection (2), be
executed in the prescribed manner . . ..
(4) Notwithstanding
anything to the contrary contained in any law, any pension, annuity,
gratuity or compassionate allowance or
other similar benefit shall be
liable to be attached or subjected to execution under an order
granted under this section."
[7]
Paragraphs 1 and 2 of the sentence referred to above do not indicate
that the order made therein is made over and above a penalty
made in
terms of Section 40 (1) of Act 99 of 1998. Further, the order does
not specify to whom the monies are to be paid.
[8]
Further, Section 297 (1)(b) of Act 51 of 1977 reads as follows:
"297.
Conditional or unconditional postponement or suspension of sentence,
and caution or reprimand
(1)
Where a court
convicts
a person
of any
offence,
other
than
an offence
in
respect
of
which any law prescribes
a minimum
punishment,
the court may in
its discretion
-
(b) pass sentence but
order the operation of the whole or any part thereof to be suspended
for a period not exceeding five years
on any condition referred to in
paragraph (a)(i) which the court may specify in the order;"
[9]
Paragraph 3 and 4 of the sentence imposed do not read as prescribed
in terms of Section 297 (1)(b) of Act 51 of 1977 in
that they do not
specify the suspension, the length of suspension and the conditions
on which the sentence is suspended.
[10]
In the
circumstances,
it
would
appear
that
the
sentence
imposed
as
presently
phrased is
not
in
accordance with the law in
that the
terms
thereof
are not sufficiently
explicit to the accused
and
all concerned.
Paragraphs
1
and 2 thereof involves
compliance
by
a
third
party,
Momentum
Insurance
Company, which
is
not
in the
powers
of
the
accused
to
control.
The
amounts
specified
in
these
paragraphs
are to
be attached
from
specified
policies
and
these
amounts will form
part of the total
amount the accused was found to be in
arrears.
Therefore,
the
total
amount
referred
to
in paragraphs
1 and
2
should
then
refer
to
the
outstanding
balance
to
be
paid
off
by
the
accused
over
and
above
the
existing
maintenance
order.
[11]
Further in order to comply with Section 297 (1)(b) of the Criminal
Procedure Act a condition ought to be included to the suspension
of
sentence for the accused not to be found in contravention of Section
31 (1) of At 99 of 1998 during the stipulated period of
suspension.
[12]
Due to the aforementioned shortcomings and having considered the
comments of the Judicial Quality Control Magistrate I have
come to
the conclusion that the manner in which the sentence was phrased is
not in accordance with justice.
[13]
In the result the sentence imposed by the Magistrate, Benoni is
reviewed and set aside and the following sentence is substituted:
The
accused is sentenced to 18 months imprisonment which is suspended for
five (5) years subject to the following conditions:
(i)
That the accused
pay
the amount of R4 000.00 per
month over and above
the
existing
maintenance
order
of
R11 000.00
per
month
to
Mrs K L
S, until
the
amount
of
R148 952.86
being
part
of
the
total
amount
in
arrears
has
been
paid
in full.
The
first
payment
is
to
be made
on
or
before
the
h
day
of
the
first
month
following
the
date
of
sentence and
thereafter
on
or
before
the
1st
day
of
each
succeeding month.
Payment
must
be effected
in
accordance
with
the
payment method of the existing
maintenance
order;
(ii)
and
that
the
accused
is
not
convicted
of
contravening
Section
31
(1)
of Act
99
of 1998
which offence is
committed during
the
period
of suspension.
(iii)
Further,
in
terms
of
Section
40
(1)
of
Act
99
of
1998,
an
order
is
made for the
attachment
of the following
amounts
of
money due
by Momentum Insurance
Company
to the accused
:
(a)
R182 827.69 from
Momentum
Policy
Number […]
and
(b)
R33 874.83 from
Momentum
Policy
Number
[…].
Payment of the said
amounts must be made directly to Mrs K L S.
_____________________________
S
A M BAQWA
GAUTENG
DIVISION, PRETORIA
I
agree and it is so ordered.
_________________________________________________
N
RANCHOD JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA