S v Visser (361/2003) [2003] ZASCA 148; [2004] 1 All SA 605 (SCA) (1 December 2003)

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[2003] ZASCA 148
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S v Visser (361/2003) [2003] ZASCA 148; [2004] 1 All SA 605 (SCA); 2004 (1) SACR 393 (SCA) (1 December 2003)

THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Reportable
CASE NO: 361/2003
In the matter between
GIDEON JOHAN VISSER
APPELLANT
and
THE STATE
RESPONDENT
CORAM
:
Farlam, Navsa JJA and Van Heerden
AJA
HEARD:
20 NOVEMBER 2003
DELIVERED
:
1 DECEMBER 2003
Summary: Maintenance – deliberate failure to comply with
maintenance order – partially suspended sentence of periodical
imprisonment
appropriate on facts of case
JUDGMENT
VAN
HEERDEN AJA
[1] The appellant was charged in the Stellenbosch
Magistrates’ Court with contravening s 11(1) of the Maintenance Act
23 of 1963
8
in that he had allegedly failed to comply with a
maintenance order over the period between 17 November 1998 and 5 July
1999 and was
in arrears to the tune of R38 500. He pleaded not guilty
but, on 18 February 2000, he was convicted as charged. On 26 June
2000,
he was sentenced to 1 440 hours of periodical imprisonment in
terms of
s 285(1)
of the
Criminal Procedure Act 51 of 1977
. In
imposing this sentence, the magistrate made two recommendations to
the Department of Correctional Services, firstly that the
periodical
imprisonment should be served over weekends (from 18h00 on Fridays to
18h00 on Sundays), and secondly –
‘
... dat in oorleg met die Departement
Korrektiewe Dienste die aantal ure periodieke gevangenisstraf deur
die Departement Korrektiewe
Dienste verminder kan word met 15 uur vir
elke R500 deur die gevangene afbetaal op die agterstallige
onderhoudsbedrag van R38 500.
Alle betalings gemaak te word in die
bankrekening van mev Merle Visser.’
(Mrs Merle Visser, the appellant’s former wife, was
the complainant.)
[2]
On appeal to the Cape Provincial Division
against both conviction and sentence, Thring J (with whom Fourie AJ
concurred) struck the
appeal against conviction off the roll for
reasons which are at this stage not necessary to record. The appeal
against sentence
was dismissed and the sentences confirmed,
2
Thring J remarking as follows:
‘Die vonnis wat die landdros opgelê het, is wel ietwat
buitengewoon, maar hierdie is myns insiens ‘n buitengewone geval.

In die eerste plek is die bedrag van die agterstallige onderhoud
betreklik groot. Tweedens, die appellant het moedswillig versuim
om
te voldoen aan die onderhoudsbevel ... Ek dink nie dat die vonnis wat
die landdros opgelê het in die omstandighede van hierdie
geval
onvanpas is of dat dit buitensporig is nie; inteendeel ek kry die
indruk dat die enigste wyse waarop die appellant gedwing
sal kan word
om onderhoud aan die klaagster te betaal, soos hy belowe het en
beveel is om te doen, is deur hom in die skaduwee van
die gevangenis
se deure te plaas. Dit blyk al taal te wees wat hy verstaan. Die
vonnis wat die landdros opgelê het het daardie
gewenste
uitwerking en wel op ‘n baie meer direkte en onmiddellike manier as
‘n tydperk van opgeskorte gevangenisstraf. Dit
het ook die
voordeel dat die rompslomp van die inwerkingstelling van ‘n
opgeskorte vonnis daardeur vermy word. Daarbenewens, en
omdat die
vonnis in alle waarskynlikheid slegs oor naweke uitgedien sal word,
behoort dit geen noemenswaardige nadelige uitwerking
op die appellant
se verdienvermoë te hê nie.’
3
[3]
With the leave of the court
a quo
,
the appellant again appeals against the sentence. The lengthy delay
between the granting of leave to appeal to this Court (on 28
September 2001), and the hearing of the appeal, was due to the
appellant’s failure to take the necessary steps to prosecute the
appeal for nearly two years. This failure was allegedly because of a
misunderstanding between the appellant’s legal representatives.
At
the outset of the hearing before us, the appellant’s application
for condonation in this regard was granted.
[4]
Prior to the hearing before this Court,
counsel for both the appellant and the State were requested to deal
with,
inter alia
, the powers of officials of the Department of
Correctional Services to reduce the period of periodical imprisonment
in accordance
with the recommendation made by the trial court, whence
such powers (if any) are derived and whether guidelines exist as to
the exercise
thereof. Supplementary heads of argument were filed by
both counsel in this regard.
[5]
Counsel agreed that the second
recommendation made by the magistrate, as set out above, could not
legally be implemented by the relevant
officials of the Department of
Correctional Services. To my mind, this view is correct. In terms of
s 285
(1) of Act 51 of 1977, a court may sentence a person convicted
of any offence, other than an offence for which a minimum punishment
is prescribed, to undergo periodical imprisonment ‘in accordance
with the laws relating to prisons’. These ‘laws relating to
prisons’ are at present to be found in the Correctional Services
Act 8 of 1959 (the Act) and in the regulations made in terms of
such
Act, published under Government Notice R2080 in Government
Gazette
No. 1326 of 31 December 1965 (the Regulations).
[6]
Section 65(4)(
b
) of the Act, as
amended, provides that:
‘A person who has under any law been sentenced to –
periodical imprisonment, shall be detained periodically
in a prison in the manner prescribed by regulation’.
[7]
The only regulation dealing with periodical
imprisonment is regulation 140, the relevant parts of which for
present purposes read
as follows:
‘(1) A person sentenced to periodical imprisonment…shall serve
such sentence in uninterrupted periods of not less than twenty-four
hours at a time as determined, with due regard to the circumstances
of such person’s employment, by the head of the prison at which
the
person surrenders himself to undergo such imprisonment: Provided that
any period thus determined may be less than twenty-four
hours, if –
on the strength of the written application of such person’s
employer, the head of the prison decides that, in the special
circumstances
of such person’s employment a shorter period is
justified, or
any unexpired portion of the sentence of periodical imprisonment is
less than 24 hours.’
[8]
As regards the ‘duties of correctional
officials in relation to the reception of prisoners and the carrying
out of sentences in
prisons’ (set out in Chapter III of the Act),
s 31 provides that:
‘Subject to the provisions of this Act, every correctional official
who is in charge of any prison and every other correctional
official
who is in charge of prisoners shall cause every prisoner who has been
sentenced by any court, to undergo that sentence in
the manner
directed in the warrant by the court …and for so doing the
warrant…or a certified copy thereof, shall be sufficient
authority
to every correctional official.’
[9]
In terms of s 33(2) of the Act, a period of
imprisonment which is imposed by a court ‘in default of payment of
a fine’ must
be reduced in proportion to the portion of the fine
which is paid or lawfully levied. The relevant paragraph of the
subsection reads
as follows:
‘(
a)
If any part of a fine is paid or levied before the
expiry of any imprisonment such as referred to in subsection (1), the
period of
imprisonment shall be reduced by a number of days bearing
as nearly as possible the same proportion of the period of
imprisonment
as the sum so paid and levied bears to the amount of the
fine.’
[10]
The sentence imposed on the appellant in the
present case cannot, however, be regarded as imprisonment ‘imposed
in default of payment
of a fine.’ Nowhere in the Act or in the
Regulations is there to be found any provision empowering either the
Commissioner of
Correctional Services or any other official of the
Department of Correctional Services to reduce the number of hours of
periodical
imprisonment imposed on a maintenance defaulter in
proportion to amounts of arrear maintenance paid by or on behalf of
such defaulter.
It thus follows that the second recommendation made
by the magistrate, innovative and imaginative as it may be, cannot
legally be
carried out by the relevant department. It is however,
clear from the magistrate’s judgment on sentence that this
recommendation
was intended to be an integral part of the sentence
imposed by him. In my view, therefore, as the recommendation cannot
legally be
implemented, the sentence envisaged by the magistrate
cannot properly be given effect to and this court is at large to
consider the
sentence afresh.
[
11
] The thrust of the appellant’s argument on
appeal was that, although the imposition of 1440 hours of periodical
imprisonment was
not
per se
an inappropriate sentence in the
circumstances of this case, the magistrate erred by not suspending
the
whole
period of such imprisonment on condition that the
appellant pay off the arrears in fixed monthly ‘instalments.’
Counsel for the
appellant argued that suspension of only a portion of
the period - even of the greater portion thereof - would not give the
appellant
an ‘incentive’ to pay off the arrears and that having
to serve even a portion of the period imposed would be unduly harsh
on
the appellant.
[12]
I disagree. While it is true that not
suspending
any
portion of the period of imprisonment imposed
would result in an unduly harsh punishment for the appellant –
particularly in view
of the fact that he is a first offender – a
suspension of the
whole
period would, on the other hand, on
the facts of this case, fail to give proper effect to several of the
purposes of sentencing.
[13]
The appellant is a qualified architect who
was practising as such when he and the complainant were divorced on
17 November 1998.
In terms of the deed of settlement entered into by
the parties and made an order of court on that date, the appellant
(the plaintiff
in the divorce action) undertook to pay maintenance
for the two minor children in the amount of R2500 per month per
child, which
amount was to be increased annually in accordance with
the increase in the Consumer Price Index. In addition, the appellant
undertook
to pay maintenance for the complainant in the sum of R500
per month until her death or remarriage. From the date of the divorce
until
the date of commencement of the trial in the magistrate’s
court, the appellant made only two payments of maintenance, amounting
in total to R10 500, i.e. less than two months’ worth of the
amounts stipulated in the deed of settlement. It was common cause
before us that the total arrear amount owing by the appellant at the
commencement of the trial (on 16 September 1999) was R 44 500.
[14]
In the meantime, in February 1999, the
appellant resigned from the firm of architects by whom he was
employed. On his own evidence
he received a payment of R400 000 from
this firm on the day before his divorce. He allegedly used about R100
000 of this money to
pay legal costs and also incurred certain other
expenses, but was unable (or unwilling) to explain to the magistrate
what he had
done with the balance of the amount of R400 000. In
March 1999 he went on an overseas trip with his current wife, whom he
married
on 8 May 1999 at Lanzerac Hotel in Stellenbosch. Although he
was ordered by the magistrate during the course of the trial to
produce
certain documentation relating to his financial affairs, he
only complied with this order in part and, in particular, he failed
to
produce a statement detailing how he had spent the R400 000 ─
despite offering to do so. As was pointed out by the magistrate and
by Thring J in the court
a quo
, the appellant’s failure to
pay maintenance for the complainant and the minor children appeared
to be both deliberate and recalcitrant.
He went so far as to state
during the trial that the minor children ‘is nie my kinders nie…dit
is aangenome kinders wat my vrou
op aangedring het om aan te neem’
– this notwithstanding the fact that he and the complainant had
jointly adopted the two boys.
I agree fully with the following
comment made by the court
a quo
:
‘Dit is duidelik uit die rekord van sy getuienis dat hy op slinkse
wyse allerhande skelmsreke uitgevoer het om die waarheid voor
die
landdros te probeer verduister en van hom weg to hou’.
4
To my mind, the magistrate was entirely justified in
describing the appellant as ‘‘n skelm, wat doelbewus nie
onderhoud betaal
nie.’
[15]
In the light of the above, a suspension of
the entire period of periodical imprisonment would not serve as
adequate punishment for
this appellant. Nor would it serve the
deterrent purpose of sentencing, either as regards the appellant or
as regards other potential
maintenance defaulters.
[16]
In the recent judgment of the
Constitutional Court in
Bannatyne v Bannatyne (Commission for
Gender Equality, as Amicus Curiae)
5
,
Mokgoro J, writing for a unanimous court, approached the issue of
maintenance in the light of the paramount criterion of the best
interests of the child, as entrenched in s 28(2) of the Constitution,
holding that, while the primary duty to ensure proper care
for
children rests on their parents, there is nevertheless an obligation
on the State to create the necessary environment for parents
to
fulfil this duty.
6
The evidence given by the Commission for Gender Equality
in its capacity as
amicus curiae
in that case clearly
illustrates the difficulties with the operation of the maintenance
system in this country, showing vividly that
this system – which
imposes disproportionately heavy burdens on mothers – undermines
the achievement of the foundational value
of gender equality in South
Africa.
7
Effective enforcement of maintenance payments is necessary not only
to secure the rights of children, but also to uphold the dignity
of
women and promote the constitutional ideals of achieving substantive
gender equality. It is therefore important that courts regard
deliberate failures to comply with maintenance orders as serious
offences and punish such failures accordingly.
[17]
Counsel for the appellant indicated that
the appellant’s financial position is such that he is able to pay
R2000 per month by
way of arrears, over and above the reduced amount
of R2000 per month which he is now obliged (in terms of an order of
the maintenance
court made subsequent to the trial) to pay as
maintenance for the two minor children. Both counsel were in
agreement that any sentence
which this Court may impose should be
based on outstanding arrear maintenance in the amount of R44 500.
[18]
The magistrate’s innovative approach
towards appropriate sentence for a maintenance defaulter like the
appellant is a commendable
one and has been recognised as such.
8
However, because of the problems with the second recommendation made
by the magistrate discussed above, the sentence must be reformulated.
[19]
The appeal therefore succeeds. The sentence
is set aside and replaced with the following:
One thousand four hundred and forty (1440) hours of
periodical imprisonment in terms of
section 285(1)
of the
Criminal
Procedure Act 51 of 1977
, one thousand one hundred and sixty (1160)
hours of which are suspended for five (5) years on condition that:
(1) the accused not be convicted of failure to comply
with any maintenance order against him during the period of
suspension: and
(2) the accused pay the arrear maintenance in the
total amount of forty-four thousand five hundred rand (R44 500) by
way of monthly
payments of two thousand rand (R2000), the first such
payment to be made by 7 December 2003 and thereafter by the seventh
day of
every consecutive month. All payments are to be made into the
bank account specified by the complainant.
It is recommended that the Department of Correctional
Services permit the accused to serve his periodical imprisonment over
weekends.
­­­­­­­­­­­­­­­­­___________________
VAN HEERDEN AJA
CONCUR:
FARLAM
JA
NAVSA
JA
8
The Act was subsequently repealed in its entirety by the
Maintenance Act 99 of 1998
, which came into operation on 26 November
1999.
2
The judgment of the Cape Provincial Division is reported as
S v
Visser
2002 (1) SACR 50
(C).
3
Above 55f-56a.
4
Above 55g-h.
5
2003
(2) SA 363 (CC)
6
Above para [24] at 375B-376A.
7
Above paras [28]-[30] at 377D-378B.
8
See
S v Cummings
(Case No. 031209, unreported review judgment
of the Cape Provincial dated 30 May 2003) and
S v Moshidi
(Case
No. 033774, unreported review judgment of the Cape Provincial
Division dated 11 September 2003).