Recent Case: Specific crimes

• Jurisdiction: South Africa
• Pages: 91-94
• Citation: (2001) 14 SACJ 91
• Date: 24 May 2019
• Published date: 24 May 2019
• Author: Ronald Louw

Recent Cases • Vonnisse



91

Specific Crimes

RONALD LOUW

University of Natal, Durban

Failure to pay Maintenance

S v Nduku

2000 (2) SACR 382 (Tk) relates a sorry tale of ineptitude in a lower

court. The case is all the more disconcerting because it deals with an

everyday and uncomplicated matter. The accused, who was undefended at

his trial, was convicted of a failure to pay maintenance in contravention of

s 31 of the Maintenance Act 1998. He pleaded guilty and on the basis of his

replies to questions put to him by the magistrate in terms of s 112(1)(b) of the

Criminal Procedure Act 1977 he was convicted and sentenced to a fine of

R500 or four months' imprisonment plus a further suspended period of

imprisonment. The accused had stated in his replies that he was

unemployed. By the time the magistrate replied to a query from the

reviewing judge, which took a period of almost three months, the accused

had already served his sentence.

In the magistrate's reply he indicated that he did not believe that the

accused was not working as a change in financial circumstances had to be

reported to a maintenance officer. The magistrate replied that he had relied

on his experience of maintenance defaulters. First, the court, per Jafta J,

noted that the magistrate was not entitled to evaluate the answers given by

an accused in reply to s 112(1)(b) questions. He cannot decide whether he

believes the answers or not. For this the court relied on Didcott J's judgment

in

S v Mkhize

1978 (1) SA 264 (N) in which he stated: 'When the court is

called upon to decide whether an accused person's response to its questions

adequately support a conviction under s 112(1)(b),

its function is not to

evaluate the answers as if it were weighing evidence, or to judge their

truthfulness or plausibility.

It is simply to interpret them to see whether they

substantiate the plea. The test, in short, is what the accused person has said,

not what the court thinks of it'

(emphasis by Jafta J) (quoted at para 3).

(2001) 14 SACJ 91

© Juta and Company (Pty) Ltd