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[2014] ZAGPPHC 491
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S v S.A.M (A211/14) [2014] ZAGPPHC 491 (28 March 2014)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION. PRETORIA)
Date: 28 March 2014
Case number: A211/14
Magistrate
Lydenburg
Case number:
LB114/2013
High Court reference
number: 1096
THE STATE VERSUS
S[...] A[...] M[...]
REVIEW JUDGEMENT
Pretori us J
[1] The accused was
convicted of contravening section 31(1) of Act 99 of 1998, that he
failed to pay maintenance in an amount of
R1500.00 per month to his
wife. The accused pleaded guilty, but due to his plea explanation the
plea was changed to not guilty.
Mrs M[...] M[...] testified that
there was a maintenance order granted on 2 May 2012, with the
accused’s consent. The accused
failed to pay maintenance at all
and was in arrears of R22,500.00. The accused elected not to give
evidence or to call witnesses.
[2]
At the time of conviction he was employed earning R11,000.00 per
month. There was no enquiries from the magistrate to determine
the
accused’s financial position. In
S
v M[...]
2001 (2) SACR
123
(TPD)
Stegmann
J found at paragraph 91:
“
Of
course, s 40(2) (a) merely empowers the court to conduct such a
summary enquiry: it does not oblige the court to do so. Nevertheless,
the discretion whether to exercise the power or not is one to be
exercised judicially.
The
object
of
the
power
to hold a proper summary enquiry into the questions surrounding the
payment of arrears of maintenance is to enable the facts
relevant to
those questions to be brought to light, and thereby to assist the
court to do justice, in respect of the question of
arrears, between
the person with the obligation to maintain a dependant and the
dependant who is entitled to be maintained
(Cout’s
emphasis)
[3] and at paragraph
93:
“
The
court can only exercise that discretion in the light of the facts of
each particular case that comes before it.
Nevertheless,
I would suggest that it must be a fair generalisation to say that
before any order for the payment of arrears of maintenance
is made,
such a summary enquiry ought to be held whenever there is room for
doubt that the convicted person has the assets from
which the
arrears, or a substantial part
of
them
,
could
be recovered by execution in terms of s 40(1) or (2)(b); and whenever
there is room for doubt that the convicted person has
the surplus
income from which payment
of
the
arrears
,
or
a substantial
part
of
them,
by regular
instalments
,
could
be sustained
(Court's
emphasis)
[4] The court merely
ascertained how much the accused earned and that he had one child. A
court has a duty, specially where an accused
is unrepresented, to
enquire into the financial position of the accused under these
circumstances. The court only enquired from
the accused how much he
could pay as maintenance and for the arrears without considering to
invoke the provisions of section 40(2)(a)
of the Act. Section
40(2)(a) provides for the court to hold a summary enquiry into the
means of the accused and the needs of Ms
M[...] and her child. There
is no indication on the record at all that the magistrate
contemplated holding an enquiry in terms
of section 40(2)(a).
[5] I referred the
case to the Director of Public Prosecutions for their comment, after
I had received the comments from the magistrate
on 10 January 2014.
The magistrate took a month to reply to the query. In his reply he
once more emphasized the interest of the
community to such an extent
that the accused’s interests were not fuily considered or no
effort was made as to enquire what
both the accused’s and the
complainant’s position were.
[6] In this instance
it was quite clear from the scant information the magistrate had,
that the accused could not pay a fine in
these circumstances and that
it would inevitably lead to imprisonment as the accused made it clear
that he did not have sufficient
funds to pay a fine. This court was
concerned that in this instance, where the fine imposed was excessive
that the accused would
be imprisoned.
[7] Due to the fact
that accused was sentenced on 2 October 2013 and the review was only
received at this office, after the magistrate
had replied to the
queries on 10 January 2014 and the Director of Public Prosecutions
took a further two months until 11 March
2014 to deal with the
matter, the six months imposed have already passed. The system had
failed the accused and the tardiness by
both the magistrate and the
director of public prosecutions to deal with these queries
expeditiously is not in the interest of
justice.
[8] Even if the
finding of this court is of academic interest at this stage, the
sentence may play a role if the accused is convicted
of a similar
offence and it will be regarded as a previous conviction.
[9] I make the
following order:
1. The sentence
imposed on 2 October 2013 is set aside;
2. The accused is
sentenced to pay a fine of R10,000.00 (ten thousand rand) or three
months imprisonment wholly suspended for a
period of 3 years, on
condition that the accused is not convicted of contravening section
31(1) of Act 99 of 1998, failure to pay
maintenance, committed during
the period of suspension.
C. Pretorius
Judge of the High
Court
I agree,
T.J. Raulinga
Judge of the High
Court