S v Matangana

• Jurisdiction: South Africa
• Judge: Maya, J
• Judgment Date: 13 August 2003
• Docket Number: 204364
• Hearing Date: 13 August 2003
• Court: Transkei High Court

Maya J:

This is a review in the ordinary course in terms of section 302(1)(a)(i) of the Criminal Procedure Act 51 of 1977 ("the Act").

The accused, who was unrepresented, appeared before the magistrate, Umtata on a charge of failing to comply with a maintenance order in contravention of Act 23 of 1963, an obvious error on the prosecutor's part which the court a quo also overlooked as this statute was no longer applicable at the time of the proceedings, having been repealed by the Maintenance Act 99 of 1998 (the "Maintenance Act"). The relevant provisions are to be found in section 31(1) and other related sections of the Maintenance Act. The mistake is however of no moment and should not on its own affect the verdict which the Magistrate subsequently returned.

The accused pleaded guilty to the charge. The Magistrate proceeded to question him, presumably in terms of section 112(1)(b) of the Act, judging by the nature of the questions, as the record is silent on this aspect.. He was then convicted on

2003 JDR 0598 p2

Maya J

his plea of guilty and sentenced to undergo nine months imprisonment.

A matter of grave concern deserving mention even before I delve into the merits of the matter is the undue delay, which has hampered its finalisation, brought about by gross negligence on the part of the office of the Director of Public Prosecutions (the "DPP") whose opinion I had solicited.

The criminal proceedings were conducted and finalised on 3 December 2001. The record of the proceedings was promptly forwarded to the Registrar of this court and placed before me on 6 December 2001. I wrote an urgent memorandum to the Magistrate querying certain aspects of the proceedings on the same day. The query was delivered to the Magistrate on 7 December 2001. I received his response on 13 December 2001 and on the same day dispatched a letter with the record of the proceedings to the office of the DPP seeking their urgent opinion on the matter. Such opinion was delivered to me only on 4 August 2003. It was accompanied by a bundle of other similarly long outstanding review matters after an enquiry initiated by the Registrar. In all these matters the subject of the queries were the sentences of direct imprisonment imposed on the accused. The issue of urgency had been emphasized in all of them. There was no reasonable explanation for the delay. Worse still, some of the review matters appearing on the Registrar's list of outstanding matters sent to the DPP are reportedly missing and cannot be traced.

This court has in a number of review judgments criticised these delays which

2003 JDR 0598 p3

Maya J

prejudice the accused, particularly one who has been sentenced to direct imprisonment, and may open the State to claims for damages should a Magistrate's decision ultimately be overturned. It has now become all too common for the DPP's office to delay furnishing their opinions on review matters where their assistance has been sought for alarmingly long periods of time and in some cases even lose the records of proceedings. This is an untenable situation which cannot be allowed to continue. It is fervently hoped that the head of that office will take all steps necessary to ensure that this state of affairs does not recur.

The record shows that the proceedings were conducted as follows:

"On 3112101

Accused pleads guilty

QUESTIONING

Q: Were you ordered to pay R400-00 per month?

A: Yes

Q: Have you paid any of this amount?

A: No

Q: Why have you failed?

A: I was staying with complainant.

Q: Were you ordered by this court to stop paying?

A: No

Q: Are you working?

A: Yes

Q: How much did you earn?

A: R1500 per month.

Q: Do you know that it is an offence to fail to pay maintenance?

A: Yes

VERDICT

Guilty – no previous convictions."

2003 JDR 0598 p4

Maya J

Section 31(1) and (2) of the Maintenance Act provides as follows:

"(1) Subject to the provisions of subsection (2), any person who fails to make any particular payment in accordance with a maintenance order shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding one year or to such...