S v Morris

• Jurisdiction: South Africa
• Judge: Rose Innes J
• Judgment Date: 13 July 1992
• Citation: 1992 (2) SACR 365 (C)
• Hearing Date: 13 July 1992
• Court: Cape Provincial Division

Rose Innes J:

The accused was convicted on 18 February 1991 in the magistrate's court of contravening s 11(1) of the Maintenance Act 23 of 1963 in that he failed to comply with the maintenance order made on 27 April 1989 in the magistrate's court sitting as a maintenance court in terms of the Act, for the payment to his former wife of maintenance at the rate of R150 per month for the support of his two children. C

D In its judgment the court made a finding that the arrear maintenance which accused had failed to pay pursuant to the maintenance order amounted to R2 450. This finding was supported by the evidence at the trial.

In the sentence which it thereafter imposed and recorded, the court erroneously stated the amount of the arrear maintenance to be R1 450. The sentence was as follows:

E 'Six months imprisonment which is suspended for five years on the following conditions:

(i)

that during the period of suspension the accused shall comply strictly with the maintenance order for the maintenance of the two children of T Morris of the amount of R150 per month, or any substitution thereof, and F

(ii)

that the accused shall pay an additional amount of R50 per month in respect of the arrear maintenance of R1 450 until the arrears have been liquidated. The first payment of R200 per month to be made at Maintenance Office, Bhorat Centre, Dobson Road, Athlone, on or before 28 February 1991 and, thereafter, on or before the last day of each and every succeeding month.'

G The case came before this Court on review in the ordinary course in terms of s 302 of the Criminal Procedure Act 51 of 1977. The presiding magistrate requested that the sentence be corrected by substituting the amount of R2 450 for the amount of R1 450 in the conditions of suspension of the sentence. Simple as the request is, to comply with it may in effect be to increase the sentence or to make an order on review in more onerous H terms for the accused than the sentence which was passed or the order made by the trial court. It is established by now that the powers of this Court on automatic review, which powers are conferred by s 304(2)(a) of Act 51 of 1977, do not include the power to increase a sentence or to make an order more onerous for the accused, where the sentence or order was a competent sentence or order of the magistrate's court, nor can this Court I on such a review set aside the sentence or order and remit the matter to the magistrate's court for that purpose. R v Froneman and Froneman 1941 TPD 74; R v Fletcher 1941 EDL 255; R v Bornman 1960 (3) SA 87 (E); S v Haasbroek 1969 (1) SA 356 (E); and S v Msindo 1980 (4) SA 263 (B).

It has on occasion been suggested that s 304(2) should be amended to give the Court on review the same power to increase sentences as it has in terms of s 309(3) of the Act on an appeal. Kotze J, however, remarked in S v Haasbroek (supra at 356) that amending legislation may not be desirable J and that

Rose Innes J

A 'it seems to me that there may be weighty reasons of public policy and justice which require that a person, once sentenced, should not be in peril of sustaining an increased sentence in or as the result of automatic review proceedings'.

We have the same reservations as the learned Judge in this regard. It is unnecessary to mention here the considerations, which readily spring to mind, which weigh against this Court in cases of automatic review B increasing sentences, or making more onerous orders in relation to sentences, than those competently imposed or made at the trial of an accused. The Legislature appears to have been of the same mind. It has not amended s 304(2), but has instead by s 9 of the Criminal Law Amendment Act...