S v November and Three Similar Cases

• Jurisdiction: South Africa
• Citation: 2006 (1) SACR 213 (C)

S v November and Three Similar Cases
2006 (1) SACR 213 (C)

2006 (1) SACR p213

Citation	2006 (1) SACR 213 (C)
Case No	High Court Ref Nos 034557; 034553; 034571; 034620
Court	Cape Provincial Division
Judge	Motala J and Bozalek J
Heard	December 3, 2005
Judgment	December 3, 2005

Flynote : Sleutelwoorde B

Maintenance — Failure to pay maintenance in contravention of s 31(1) of Maintenance Act 99 of 1998 — Sentence — Suspended sentence — Conditions of suspension — Payment of arrears — Where it was condition of suspension of sentence that defaulter pay off maintenance arrears, proper account should be taken of defaulter's financial means — Failure to enquire into defaulter's financial means resulting in C inappropriately lenient terms for payment of arrears.

Maintenance — Failure to pay maintenance in contravention of s 31(1) of Maintenance Act 99 of 1998 — Order for payment of arrears — Magistrates' failure to conduct proper D enquiries into defaulters' financial circumstances together with failure to view non-compliance in sufficiently serious light resulting in unrealistic and overly lenient terms for payment of arrears — Levying of interest can partly compensate for loss in value, through inflation, of missed instalments and help to ensure that non-payment of maintenance arrears is not treated as form of cheap credit by defaulters — Instalment payments should E be set on basis that maintenance was primary obligation on defaulter, not one ranking equally with other expenses.

Maintenance — Failure to pay maintenance in contravention of s 31(1) of Maintenance Act 99 of 1998 — Sentence — Necessary for prosecutors and magistrates to inform themselves of range of available F sentencing options, including correctional supervision and periodical imprisonment — Officials also to acquaint themselves with comprehensive range of procedures available in Maintenance Act in order to ensure best interests of children protected by proper enforcement of maintenance orders — Sections 26 G

2006 (1) SACR p214

and 40 both providing civil remedies for recovery of maintenance without defaulter having to A be convicted in terms of s 31(1).

Review — Powers of Court — Power to set aside conditions of suspension of sentence — Automatic review — Overly lenient conditions of suspension of sentence — Not open to Court to interfere in sentence if this would have effect of making sentence more onerous for accused. B

Headnote : Kopnota

The accused in each of these cases had been convicted in the magistrate's court of contravening s 31(1) of the Maintenance Act 99 of 1998, in that they had failed to comply with a maintenance order. Each had been sentenced to a period of imprisonment suspended on similar conditions: that they did not repeat the offence during the period of suspension; and that they pay off the arrear maintenance at a specified monthly rate. C

Held, that each case represented a failure of justice vis-à-vis the persons in respect of whom the maintenance was payable. The terms upon which the accused were required to pay off the arrears were lenient to the point of indefensibility. This situation arose partly because the various magistrates had failed to conduct proper enquiries into the accused's financial circumstances, and partly because they had failed to view the accused's non-compliance in a sufficiently serious light. (Paragraph [8] at D 217a - c.)

Held, further, that it was necessary for prosecutors and magistrates to inform themselves of the range of available sentencing options, including correctional supervision and periodical imprisonment. These officials should also acquaint themselves with the comprehensive range of procedures available in the Maintenance Act in order to ensure that the best interests of children were protected by E the proper enforcement of maintenance orders. Section 40 of the Act provided for the granting of an order of recovery against a maintenance defaulter; likewise, a warrant of execution against the defaulter's property could be authorised after an enquiry held in terms of s 40(3). In addition, s 26 of the Act provided for the enforcement of maintenance orders by, inter alia, execution against the defaulter's property and by the attachment of emoluments or any debts owing to such person. These remedies were available without the defaulting party having to be convicted of contravening s 31(1). Where the defaulter was ordered to pay off the arrears the instalments should be set on the basis that maintenance was a primary obligation on him, F not one ranking equally with his other expenses, and any conditions of suspension of sentence should take proper account of the defaulter's G financial means. (Paragraphs [11] - [13] at 218a - g.)

Held, further, that if these principles were applied to the present matters, there was no reason why the respective defaulters could not have been ordered to pay off their arrears at a realistic rate, together with interest on the capital sum, which would at least partly have compensated for the loss in value of the missed instalments and have helped to ensure that non-payment of maintenance arrears was H not treated as a form of cheap credit by defaulters. (Paragraph [14] at 218i - j.)

Held, further, that, all this having been said, it was not possible for the Court to set aside the conditions of suspension and either remit the matters to the magistrates concerned or itself impose more stringent conditions, since to do so would be in effect to make I the sentence more onerous for the accused; and this was not competent on automatic review. The conditions of suspension imposed by the magistrates therefore had to stand, an unsatisfactory result which further emphasised the need for magistrates carefully to consider the most appropriate order in circumstances such as these. (Paragraphs [16] and [17] at 219e - 220a.) J

2006 (1) SACR p215

Annota...