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2005
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[2005] ZAFSHC 24
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S v Mngomezulu (1903/2004) [2005] ZAFSHC 24 (14 January 2005)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review No. : 1903/2004
In
the review between:
THE
STATE
versus
NKOSANA
CASWELL MNGOMEZULU
_____________________________________________________
CORAM:
WRIGHT
J
et
EBRAHIM
J
_____________________________________________________
JUDGMENT:
WRIGHT
J
DELIVERED ON:
14
JANUARY 2005
The accused, a twenty
nine year old first offender, was found guilty of contravening
section 31(1) of Act 27 of 1998 by failing to
comply with a
maintenance order and sentenced to a fine of R2 000,00 or 8 months
imprisonment.
The accused pleaded
guilty and admitted that he was in arrear with maintenance in an
amount of R1 700,00. He also mentioned that
he lost his employment
due to dereliction of his duties and that he was regularly late for
work. He also used his employerâs vehicle
for his own purposes.
It is trite law that all
steps must be taken to keep a first offender out of jail if possible
and there is no doubt that the accused
in this case must be taught a
lesson and that he cannot fail to provide maintenance as minor
children are involved.
This is nevertheless his
first offence and in view of the fact that he will in any case not be
able to provide any maintenance while
he is in prison, it is
especially important that his term of imprisonment if he fails to pay
the fine should not be too long.
Another important aspect
of the matter is the proportion or ratio between the fine and the
term of imprisonment which is imposed as
alternative to the fine. In
this respect I would refer to
S
v KAPENG
1992 (1) SASV 596 (O) and
S
v MAKOAE
1997
(2) SASV 705 (O) especially on p 709 C â F.
In
view of all the circumstances of this matter the conviction is
confirmed but the sentence set aside and substituted with the
following
sentence:
A fine of R1 500,00 or 3
months imprisonment.
Sentence must be deemed
to have been imposed on 16 November 2004.
_____________
G.F. WRIGHT, J
I
concur.
_____________
S. EBRAHIM, J
/sp