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[2014] ZAFSHC 144
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K v S (A96/2014) [2014] ZAFSHC 144 (4 September 2014)
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IN THE
HIGH COURT OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Appeal No.: A96/2014
In the matter
between:
J
S K[...]
…............…...........................................................................................................................
Appellant
and
THE
STATE
….................................................................................................................................
Respondent
CORAM;
LEKALE,
J
et
MOTLOUNG,
AJ
HEARD
ON:
25
AUGUST 2014
JUDGMENT
BY:
LEKALE,
J
DELIVERED
ON
:
4
SEPTEMBER 2014
[1] On 17 July 2013
the appellant was convicted by the Welkom Magistrate’s Court of
contravention of section 31(1) of
Maintenance Act 99 of 1998
in that
he had failed to make monthly maintenance payments in accordance with
court orders. He was eventually sentenced to 12 (twelve)
months
imprisonment in terms of
section 276(1
)(i) of the
Criminal Procedure
Act 51 of 1977
. He feels aggrieved by the sentence and now approaches
us on appeal against the same with leave granted by the trial court.
[2] On imposing the
impugned sentence the court below found that the appellant failed to
comply with the relevant maintenance orders
in an arrogant manner
regard being had to the funds that passed through his hands during
the relevant period. The trial court,
further, felt that the
appellant’s crime in this regard was a form of domestic
violence insofar as the
Domestic Violence Act No 116 of 1998
defines
economic abuse in
section 1
thereof as including:
“
The
unreasonable deprivation of economic or financial resources to which
a complainant is entitled under law.”
The
court a
quo,
thus,
found that the complainant and the two children in respect of whom
the appellant was obliged to effect monthly payments were
subjected
to economic abuse.
[3] The trial court,
further, found that a suspended sentence as well as correctional
supervision was not appropriate as a sentence,
because it would
totally undermine the seriousness of the offence involved regard
being had to the merits of the matter, the high
prevalence of the
offence in question and the fact that the sentence should fit both
the appellant and the crime involved. The
trial court further
rejected a fine as an appropriate option while recognising that it
was also one of the court’s main purposes
to try to
rehabilitate a first offender outside prison.
[4] It was the trial
court’s view that the appellant wanted to punish the
complainant by subjecting her to a form of domestic
violence regard
being had to the degrading and humiliating path she had to walk in
order to hold the appellant responsible, the
financial position the
appellant was in and the arrogant way in which he held the court
orders in contempt. The court below felt
that it was important not
only to rehabilitate the appellant as an individual, but also to send
out a strong message to other people
engaged in the commission of
similar crimes.
[5] Mr Dreyer, for
the appellant, contends that the trial court misdirected herself by
treating the offence involved as a domestic
violence case and failed
to consider all available options when she imposed the sentence. In
his view an appropriate sentence would
be a suspended sentence
coupled with a fine, because the appellant is now in a position to
pay the fine as he has since the sentence
been paying maintenance on
regular basis. Periodical imprisonment would not be appropriate, in
his view, because no employer would
tolerate an employee who has to
undergo imprisonment over weekends and this may lead to termination
of the appellant’s employment.
[6]
The State supports the sentence with Mr Hiemstra pointing out that
the court below had no option other than direct imprisonment
to
impose because the appellant did not even testify and was clearly
determined to frustrate the complainant by maliciously defaulting
on
his maintenance payments with arrears being in the region of R80
000.00. There exists no reason for the court to interfere with
the
sentence although he could not find authority in support of direct
imprisonment in a case of a first maintenance defaulter.
In his view,
periodical imprisonment would be appropriate because the appellant’s
default was deliberate and persistent in
that it was of a long
duration. He relies in this regard on the decision in
S
v Visser
.
2004 (1) SACR 393
(SCA) at 399f.
[7]
The gravity of the default in the instant matter is apparent from the
evidence of the complainant who testified that an order
for
maintenance
pendente
lite
was
made in 2006 against the appellant and a maintenance order was made
in 2008 when the parties divorced. The appellant failed
to comply
with the orders in question since at least 2008 despite the fact that
he was in the position to comply with the same
as substantial amounts
of money were paid into his bank account and he was at all material
times gainfully employed. The appellant
was declared insolvent at the
instance of the complainant in February 2012. The appellant was in
employment as at the date of sentence
and effected payment of at
least R4 000.00 in respect of maintenance before the commencement of
the trial.
[8] The question in
this matter is whether or not there exists cause for this court to
interfere with the sentence imposed. 1 am
persuaded by the facts in
this matter that the trial court failed to strike a healthy balance
between the crime, the criminal and
the interests of society insofar
as she appears to have overemphasised the gravity of the offence at
the expense of the community
and the appellant when she effectively
lost sight of the interests of the relevant children, who stand to
continue to be deprived
of regular monthly maintenance if the accused
goes to prison. In this regard Mr Hiemstra correctly conceded that
the fact that
the appellant stands to lose his employment and income
if he goes to jail is a very important factor to take into
consideration
in the determination of the appeal in the instant
matter.
[9]
In my view a custodial sentence which is not suspended is not
appropriate in the present matter as it only addresses the
retributive
purpose of sentence. Mr Hiemstra is probably correct in
his submission that periodical imprisonment of which part is
conditionally
suspended may be appropriate as a sentence if the
accused’s financial position warrants an order for payment of
arrears or
part thereof as the case was in
S
v
Visser
.
supra.
It
is further probably correct, as contended by Mr Dreyer, that a wholly
suspended custodial sentence is appropriate regard being
had to the
fact that the appellant is a first offender and is employed. We are,
unfortunately, not in a position to determine an
appropriate sentence
in the light of lack of information on the appellant’s earning
capacity as correctly submitted for the
State.
[11] In conclusion
Mr Hiemstra is correct in his view that the record paints a
disturbing picture of how the trial was conducted
with the prosecutor
apparently not having consulted properly with the complainant and
failing to present all available documentation
and information before
the trial court.
[12] The conviction
cannot be faulted while the sentence falls to be set aside.
ORDER
[13] The conviction
is confirmed.
[14] The sentence
is, however, set aside and the matter is remitted to the trial court
for determination of an appropriate sentence
which keeps the
appellant out of prison after investigation of his financial
position.
L. J. LEKALE, J
I concur.
I.M.M.MOTLOUNG,
AJ
On behalf of
appellant: Adv N.J.G. Dreyer
Instructed by:
BLOEMFONTEIN
On behalf of
respondent: Adv J.H.S. Hiemstra SC
Instructed by:
Director of Public
Prosecutions
BLOEMFONTEIN