About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2013
>>
[2013] ZAFSHC 220
|
|
S v Van der Sandt (218/2013) [2013] ZAFSHC 220 (28 November 2013)
IN THE HIGH
COURT OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Case
No: 218/2013
In
the matter between:
THE
STATE
and
JACOBUS
PETRUS VAN DER SANDT
CORAM:
MOLEMELA, J et SESELE, AJ
JUDGMENT
BY
: SESELE, AJ
DELIVERED
ON:
28 NOVEMBER 2013
[1]
This matter was referred for special review in terms of section
304(4) of the Criminal Procedure Act 51 of 1997.
[2]
In her covering letter to the review, the learned Magistrate
Virginia, made the following remarks, amongst others:
2.1 that the accused
was convicted and sentenced in terms of section 31 of the Maintenance
Act 99 of 1999 (“the Act”)
on 19 April 2013.
2.2 that the accused
was sentenced to three years imprisonment which was wholly suspended
for a period of five years on condition
that the accused is not
convicted of contravention of section 31 of the Act committed during
the period of suspension.
2.3 that section 31
of the Act prescribes a fine or imprisonment for a period not
exceeding one year or imprisonment without the
option of a fine.
2.4 that the
sentence imposed by the court is irregular in terms of the law.
2.5
that the sentence should be set aside and the matter be referred back
to the court to impose a competent sentence, alternatively,
that it
be substituted with an appropriate sentence.
[3]
The matter served before Sepato AJ who then directed the following
query to the learned magistrate:
“
1.
From the plea explanation and throughout the trial, did the
magistrate not consider converting the proceedings into an enquiry
in
terms of section 41(a) of the Act?
2.
Upon reading lines 15 – 19 on page 57 of the court’s
sentence judgment, it would appear the court intended to make
an
order regarding the arrear amounts that the accused has been
convicted of, as part of the conditions of the suspension of the
imprisonment term. However, the eventual order on page 59 does not
address the issue of the arrears. Is my assumption correct or
not?”
[4]
The learned magistrate duly furnished the response which may be
summarised as follows:
4.1 that the accused
was ordered to pay R3 700,00 per month on 31 January 2009 and
the order was never amended.
4.2 that the accused
was sentenced to imprisonment during 2012 for failure to comply with
the order.
4.3 that the court
did indeed consider to convert the proceedings into the maintenance
enquiry in terms of section 42 of the Act.
4.4 that the accused
appeared not to have corrected his behaviour of non-compliance with
the court order granted on 31 January 2009,
was subsequently
convicted and imprisoned during 2012.
4.5 that the accused
appears to the learned magistrate, to be unwilling to pay
maintenance.
4.6 that the accused
misled the court by alleging that he had applied for the reduction of
the monthly maintenance order.
4.7
that the learned magistrate considered the fact that the accused is a
former police officer and should have appreciated the
consequences of
his actions.
[5]
The learned magistrate further states:
“
Die
Hof is jammer vir die oorsig dat die Hof net 12 maande maksimum
gevangenis mag oplê volgens die Wet.”
[6]
Section 31(1) of the Act provides:
“
Subject
to the provisions of subsection (2), any person who fails to make any
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 one year or to such imprisonment
without the
option of a fine.”
[7]
The sentence imposed by the learned magistrate is clearly in excess
of the sentence prescribed in section 31(1) and it is therefore
not
in the interests of justice.
[8]
Section 42 provides:
“
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 makes periodical payment of
sums of money towards
the maintenance of any other person it appears
to the court that it is desirable that the maintenance enquiry be
held, or when
the public prosecutor so request, the court shall
convert the proceedings into such enquiry.”
[9]
Section 42 gives the magistrate a discretion to convert the
proceedings into an enquiry. In my view, the learned magistrate
has judiciously exercised the discretion and same cannot therefore be
interfered with. The learned magistrate correctly stated
that section
31 of the Act prescribes a fine or imprisonment for a year not
exceeding one year imprisonment without an option of
a fine.
The sentence he/she imposed is thus incompetent and falls to be set
aside.
ORDER:
[10]
The sentence imposed by the learned magistrate on 19 April 2013 is
hereby set aside and substituted with the following:
“
1.
The accused is sentenced to one year imprisonment which is wholly
suspended for a period of five (5) years on condition that
the
accused is not convicted of contravention of section 31 of Act 99 of
1998 during the period of suspension.
2. The sentence
is antedated to 19 April 2013.”
_________________
L. M. S. SESELE,
AJ
I
concur.
_________________
M. B. MOLEMELA, J