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[2004] ZAFSHC 33
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S v Mthembu (308/2004) [2004] ZAFSHC 33 (13 May 2004)
IN THE HIGH
COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review
No.: 308/2004
In
the review between:
THE
STATE
and
ELIAS
MTHEMBU
___________________________________________________________
CORAM:
WRIGHT
et
VAN
DER MERWE, JJ
___________________________________________________________
JUDGMENT
BY:
VAN DER MERWE, J
___________________________________________________________
DELIVERED
ON:
13 MAY 2004
___________________________________________________________
[1] The accused in this matter was charged in the
Magistrateâs Court for the district of Witsieshoek held at Tseki
with failure
to comply with a maintenance order dated 31 May 2002, in
contravention of
section 31(1)
of the
Maintenance Act, No.99 of 1998
.
The charge sheet alleged that in terms of the said maintenance
order, the accused was ordered to pay R3 000,00 per month towards
the
maintenance of his two children and that on 6 January 2003 the
outstanding amount in terms of the order was R2 400,00.
[2] The accused pleaded guilty and was thereafter found
guilty as charged on 26 January 2003. No questioning took place in
terms
of
section 112(1)(b)
of Act 51 of 1977. On the same date the
accused was sentenced to a fine of R3 000,00 or three months
imprisonment wholly suspended
for a period of five years on
condition, firstly, that the accused is not convicted of
contravention of section 31(1) of Act No.99
of 1998, committed during
the period of suspension and, secondly, that he pays the amount of
R50,00 per month with effect from 31
January 2003 in respect of the
arrear maintenance over and above the payments in terms of the
existing maintenance order.
[3] The record of this matter for purposes of review
reached the office of the Registrar of this Court only on 25 February
2004.
It can only be assumed that the matter was sent on review when
it was discovered that the sentence was incompetent as set out below.
Reasons requested on 25 February 2004 reached the office of the
Registrar of this Court only on 11 May 2004.
[4] I am satisfied that the matter should have been
dealt with in terms of the provisions of
section 112(1)(a)
of the
Criminal Procedure Act, No. 51 of 1977
. However, in terms of the
said section, a fine of not more than R1 500,00 may be imposed. It
follows that the sentence is incompetent
and must be set aside.
[5] I consider it in the interest of justice not to
remit the matter to the Magistrate for sentencing afresh, and that
sentence be
imposed by this Court. The accused said that he was
employed as a taxi driver and earned the amount of R400,00 per month.
Nevertheless,
he managed to substantially comply with the order to
pay the amount of R3 000,00 per month from 31 May 2002, as on 6
January 2003
he was in arrears in the amount of
R2 400,00, that is less than a full monthâs payment.
He offered to repay the amount in arrears at the rate of R50,00 per
month.
He is a first offender.
[6] The sentence is set aside and substituted with a
fine of R1 500,00 or 45 days imprisonment, wholly suspended for a
period of five
years on condition, firstly, that the accused is not
convicted of contravention of
section 31(1)
of Act No.99 of 1998,
committed during the period of suspension and, secondly, that he pays
the amount of R50,00 per month with effect
from 31 January 2003 in
respect of the arrear maintenance over and above the payments in
terms of the maintenance order dated 31
May 2002. The sentence must
be deemed to have been imposed on 26 January 2003.
___________________________
C.H.G. VAN DER MERWE, J
I CONCUR
________________
G.F. WRIGHT, J
/scd