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[2019] ZASCA 50
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N C v S (285/2018) [2019] ZASCA 50 (1 April 2019)
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Certain
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Non-Reportable
Case no: 285/2018
In
the matter between:
N
C APPELLANT
and
THE
STATE RESPONDENT
Neutral
citation:
N
C v The State
(285/2018)
[2019] ZASCA 50
(1 April 2019)
Bench:
Tshiqi, Saldulker, Dambuza and Mocumie
JJA and Mokgohloa AJA
Heard:
13 March 2019
Delivered:
1 April 2019
Summary:
Criminal Procedure – appeal
against convictions and sentence – leave to appeal refused by
magistrate – petition
refused by the court a quo
–
the test is whether the appellant has shown
reasonable prospect of success on appeal against the convictions and
sentence.
ORDER
On
appeal from
:
Western
Cape Local Division, Cape Town (Dlodlo J and Thulare AJ sitting as
court of appeal):
1 The appeal is upheld to the extent
reflected herein below:
2 The order of the high court
dismissing the applicant’s petition for leave to appeal against
count 1 is set aside and substituted
with the following order:
‘
The
applicant is granted leave to appeal to the Western Cape Division of
the High Court, Cape Town against his conviction in respect
of count
1 and the sentence imposed in the Magistrate’s Court, Cape
Town.’
JUDGMENT
Mocumie
JA (Tshiqi, Saldulker and Dambuza JJA and Mokgohloa AJA concurring):
[1]
This is an appeal against the refusal of a petition for leave to
appeal by the Western Cape High Court, Cape Town, (Dlodlo J
and
Thulare AJ) (high court). The applicant, Mr N C, was charged in the
Magistrates Court, Cape Town with two counts of contempt
of court. It
was alleged that he contravened ss 305(1)
(q)
and
3
95(6)
of the Children’s Act, 38 of 2005 (the Children’s Act):
Count 1 related to the contravention of the Children’s
Court
order during the period between 21 November 2014 and 15 April 2015.
In count 2, it was alleged that he contravened the Children’s
Court order from 16 April 2015. On 21 November 2014 he was found
guilty on both counts. The two counts were taken as one for purposes
of sentence and he was sentenced to ‘undergo a period of
periodical imprisonment, for a period of one (1) year periodical
imprisonment to be served from 17h00 on every Friday until 6h00 on
Monday thereafter.’ Subsequently, the magistrate referred
the
matter to the high court for special review in terms of s 304(2)
(a)
of the Criminal Procedure Act, 51 of 1977 (the CPA), on the basis
that he had erred in not imposing a periodical imprisonment sentence.
The high court reviewed the sentence and altered it in terms of s
304(2)
(c)
(ii)
of the CPA. It ordered the appellant ‘to serve a periodical
imprisonment for a cumulative period of 2000 (two thousand)
hours’.
The applicant, aggrieved by this, sought leave to appeal against both
convictions and sentence. The magistrates’
court dismissed his
application for leave to appeal. He then petitioned the high court
for leave to appeal against the conviction
and sentence. His petition
was refused. This court subsequently granted special leave to appeal,
to this court, against the refusal
by the High Court.
[2]
The factual background to this matter is summarily as follows. The
complainant and the applicant (the parties) were in a love
relationship. Out of the relationship one child was born. In August
2014 the complainant moved to M. When the child was five years
old, a
dispute arose between the parties regarding which school the child
should attend. The dispute was referred to a facilitator.
On 3
November 2014 the facilitator issued a directive that the child
should attend at M Private School. It was accepted by both
parties
that the directive was binding on them. On 14 December 2012, a
parenting plan concluded between the parties was made an
order of the
court.
[3]
On 21 November 2014 the Children’s Court issued an interim
order in the following terms:
‘
In
terms of ss 48 (1) (a) read with ss 7;45(1) (d) and (k) Act 38/2005
it is hereby ordered that the father of the child, Mr N C
must pay
any additional amount over and above the current school fee amount of
R1700,00 for the enrolment; registration; development
and user fees;
actual school fees and after care fees (up to 18h00) to ensure the
enrolment of the child at M Private School immediately
upon the above
fees becoming payable and to continue doing so until/in lieu of any
of the following eventualities:
-
A
Maintenance court order
-
An
agreement in terms of s 72 of Act 38/2005;
-
A
variation of the Parenting Plan- dated 14/12/2012 in terms of s 34(5)
Act 38/2005 or the review of this order on 17/04/2015.’
This
meant that the appellant had until 17 April 2015 to anticipate the
return date. He could, if he so wished and was advised,
bring any
application if not satisfied with any part of this order. He did not
do anything.
[4]
In order to succeed in an application for special leave to appeal
against the convictions and sentence, the appellant has to
show that
there is a reasonable prospect of success on appeal against the
convictions and sentence.
[1]
In order for
the appellant to be found in contempt of court of the two counts it
was incumbent on the State to prove beyond reasonable
doubt three
requisites, namely (a) the order; (b) service or notice on the
accused; and (c) non-compliance by the accused. As the
Constitutional
Court held in
Fakie
NO v CCII Systems
:
[2]
‘
[O]nce
the applicant has proved the order, service or notice and
non-compliance, the respondent bears the evidential burden in
relation to wilfulness and mala fides: should the respondent fail to
advance evidence that establishes a reasonable doubt as to
whether
non compliance was wilful and mala fide, contempt will have been
established beyond reasonable doubt.’
[5]
For the reasons that follow, leave to appeal must be granted in
respect of count 1 and must fail in respect of Count 2.
Count 1
On 25 November 2014 the applicant
filed a notice of appeal seeking to appeal the order of 21 November
2014. On 8 April 2015 the
applicant’s attorneys wrote to the
magistrate of the Children’s Court notifying him that the
applicant did not intend
to proceed with the appeal, but had instead
brought an application to the Western Cape High Court to have the
directive of the
facilitator set aside. On 15 April 2015, the
children’s court made an order suspending its order dated 21
November 2014.
On 22 June 2015 that application was dismissed by the
high court. On 16 July 2015 the Children’s court reinstated the
order
of 21 November 2014. As the above sequence shows, that order
was suspended for the period 21 November 2014 until 8 April 2015 when
the applicant withdrew the notice of appeal. It was again suspended
by the order of the Children’s Court on15 April 2015.
Although
the purported appeal and the review processes were ill-advised and
lacked merit, it is not disputed that the applicant
had acted on the
advice of his legal representative. It can thus not be concluded that
the requisite malice was proved. During
argument in the hearing
before this court, counsel for the State was constrained to concede
this point.
Count 2
In respect of count
2, the argument was that because the appellant was ordered on 16 July
2015 to comply with the court order by
17 July 2015, it was
impossible to do so within a day. This argument does not assist the
applicant. He did not ask for time to
comply with the order albeit at
a later stage. Instead, on 3 September 2015 he wrote an e-mail to the
complainant stating that
‘this place [referring to the school]
is so bad and I won’t allow C to attend such an inferior place
of education.’
During argument his counsel conceded that this
email, coupled with his subsequent conduct after the 16 July 2015,
clearly showed
that he was not prepared to comply with the court
order. The fact that he visited the school and filled in the forms
was not enough
to cover what the children’s court termed ‘do
everything’ to comply with the order.
[6]
It is also significant that the applicant’s default was not
occasioned by lack of affordability. What the applicant wanted
was
for the child to attend a private school of his choice, P Private
School, which was closer to his home. He gave no due regard
to the
fact that this school was far from the complainant who was the
primary care giver of the minor child. He was therefore wilful
and
mala fide with regards to the order of the Childrens’ Court.
There are thus no reasonable prospects of success that another
court
will come to a different conclusion regarding count 2.
Sentence
[7]
As leave has been granted only in respect of count 1, it is prudent
to grant leave to appeal against sentence as well; to enable
the high
court to determine what an appropriate sentence should be.
[8]
In the result, the following order is granted.
1 The appeal is upheld to the extent
reflected herein below:
2 The order of the high court
dismissing the applicant’s petition for leave to appeal against
count 1 is set aside and substituted
with the following order:
‘
The
applicant is granted leave to appeal to the Western Cape Division of
the High Court, Cape Town against his conviction in respect
of count
1 and the sentence imposed in the Magistrate’s Court, Cape
Town.’
__________________
B C Mocumie
Judge
of Appeal
APPEARANCES
For
Appellant: M A Ipser
Instructed
by:
Arnold
& Associates, Cape Town
Symington
& de Kok Attorneys, Bloemfontein
For
Respondent: M O Julius
Instructed
by:
The
Director of Public Prosecutions, Cape Town
The
Director of Public Prosecutions, Bloemfontein
[1]
Mdluli v S
[2015] ZASCA 178
para 3.
[2]
Fakie NO
v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) para 42.See also
Pheko
& others v Ekurhuleni Metropolitan Municipality
[2015] ZACC 10
;
2015
(5) SA 600
(CC);
2015 (6) BCLR 711
(CC) para 32 and 36. (See
S
v Smith
2012 (1) SACR 567
(SCA) para 7, quoted with approval, in
Famanda
v S
[2018] ZASCA 139
para
4.)