Curnow v S (A142/2009) [2011] ZAWCHC 61 (4 March 2011)

Curnow v S (A142/2009) [2011] ZAWCHC 61 (4 March 2011)

The conviction and sentence were set aside because the magistrate failed to properly interrogate the appellant's defence of lack of means and did not ensure that the prosecution discharged its onus to prove that the lack of means was due to unwillingness to work or misconduct. The appellant's statement raised doubts about the reasons for non-payment, which should have been examined in detail. The matter is remitted to the trial court to comply with sections 112 and 113 of the Criminal Procedure Act, allowing for proper questioning and, if necessary, a change of plea and proof of the charge by the state.

Citation
[2011] ZAWCHC 61
Parties
Appellant: George Curnow; Respondent: The State
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
4 March 2011
Case Number
A142/2009
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Outcome
Appeal upheld; conviction and sentence set aside; matter remitted to trial court for compliance with sections 112 and 113 of the Criminal Procedure Act.
Judges
Binns-Ward, Jakuja
Legal Topics
Maintenance Act, Failure to Pay Maintenance, Onus of Proof, Lack of Means Defence
Criminal Law Family and Children Maintenance Act Failure to Pay Maintenance Onus of Proof Lack of Means Defence

Case Brief

Summary, issues, holding and outcome

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Parties

George Curnow

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence

Legal Issues

  1. 1 Whether the appellant's conviction for failure to pay maintenance under section 31(1) of the Maintenance Act was correct.
  2. 2 Whether the magistrate properly considered the appellant's defence of lack of means.
  3. 3 Whether the prosecution discharged its onus to prove that the appellant's lack of means was due to unwillingness to work or misconduct.

Ratio Decidendi

The conviction and sentence were set aside because the magistrate failed to properly interrogate the appellant's defence of lack of means and did not ensure that the prosecution discharged its onus to prove that the lack of means was due to unwillingness to work or misconduct. The appellant's statement raised doubts about the reasons for non-payment, which should have been examined in detail. The matter is remitted to the trial court to comply with sections 112 and 113 of the Criminal Procedure Act, allowing for proper questioning and, if necessary, a change of plea and proof of the charge by the state.

Court Disposition

Appeal upheld; conviction and sentence set aside; matter remitted to trial court for compliance with sections 112 and 113 of the Criminal Procedure Act.

Orders

  • The appeal is upheld.
  • The conviction and sentence are set aside.