S v Mononyane (79/2000) [2000] ZANWHC 14 (2 November 2000)

CA NO. 79/2000

IN THE

HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:

THE STATE

and

LUCAS

MONONYANE

_______________

REVIEW

JUDGMENT

MOGOENG J.

[1] The accused in this review was charged with failure to pay maintenance for his minor children in terms of a maintenance order. He was allegedly ordered on 01 October 1998 to pay R600.00 per month but failed to do so over a period ending 04 May 2000. It was also alleged that he was accordingly in arrears in the amount of R11 200.00.

[2] He was convicted and sentenced to R2000.00 or twelve months imprisonment. The fine was not paid and the accused is in prison. The conviction is in order. It is the sentence that I believe is not in accordance with justice so much so that I felt constraint to order the release of the accused without giving the Magistrate the opportunity to give reasons for the sentence imposed. The reasons for ordering the immediate release of the accused follow hereunder. The primary focus of this judgment will be the historical perspective of the purpose of the legislation relating to maintenance, the practice with respect to sentencing first offenders and the implications of a term of imprisonment even if it is coupled with an option of a fine and the circumstances under which an effective term of imprisonment would be appropriate. [3] Section 110 of Act 46 of 1935 (which is similar in its terms to section 11(1) of the Maintenance Act No. 23 of 1963 and section 31(1) of the Maintenance Act No. 99 of 1998) was intended to provide a cheap, summary and expeditious remedy supplementary to or concurrent with the more expensive and possibly less expeditious one available at common law to dependants who have obtained orders of Court for maintenance. The common law remedy in question is that of committal for contempt of Court. It was the uniform practice of the Supreme Court, prior to the

enactment of section 110 of Act 46 of 1935, in granting orders of committal, to suspend the operation thereof on conditions designed to bring about due payment of monies due under maintenance orders, unless it was clear that no useful purpose would be served by such suspension, or unless special circumstances existed justifying an absolute committal. The same considerations guided magistrates in applying section 110 of Act 46 of 1935. (See REX v BECKER 1951 (2) 162 TPD at 164E-H).

[2] He was convicted and sentenced to R2000.00 or twelve months imprisonment. The fine was not paid and the accused is in prison. The conviction is in order. It is the sentence that I believe is not in accordance with justice so much so that I felt constraint to order the release of the accused without giving the Magistrate the opportunity to give reasons for the sentence imposed. The reasons for ordering the immediate release of the accused follow hereunder. The primary focus of this judgment will be the historical perspective of the purpose of the legislation relating to maintenance, the practice with respect to sentencing first offenders and the implications of a term of imprisonment even if it is coupled with an option of a fine and the circumstances under which an effective term of imprisonment would be appropriate.

[3] Section 110 of Act 46 of 1935 (which is similar in its terms to section 11(1) of the Maintenance Act No. 23 of 1963 and section 31(1) of the Maintenance Act No. 99 of 1998) was intended to provide a cheap, summary and expeditious remedy supplementary to or concurrent with the more expensive and possibly less expeditious one available at common law to dependants who have obtained orders of Court for maintenance. The common law remedy in question is that of committal for contempt of Court. It was the uniform practice of the Supreme Court, prior to the enactment of section 110 of Act 46 of 1935, in granting orders of committal, to suspend the operation thereof on conditions designed to bring about due payment of monies due under maintenance orders, unless it was clear that no useful purpose would be served by such suspension, or unless special circumstances existed justifying an absolute committal. The same considerations guided magistrates in applying section 110 of Act 46 of 1935. (See REX v BECKER 1951 (2) 162 TPD at 164E-H).

[4] The object of the Maintenance Act 99 of 1998 is somewhat unique, and differs from that of other criminal legislation. The main object of the Act is manifestly to ensure that minor children are properly supported by their parents. The legislature had the interests of such children in mind, as its primary objective, when it enacted the Maintenance Act. Thus where someone who owes a duty of support fails to comply with a maintenance order, it is often inappropriate to send such a transgressor to prison. The interests of the child or children in question as well as the interests of the community, which includes children, come strongly to the fore, and actually require that the transgressor should not lose his ability to earn an income by being sentenced to effective imprisonment. (See S v MENTOOR 1998 (2) SACR 659 (C)). [5] These views as well as the views relating to the problems such incarceration would occasion to the accused’s family members and to the State were previously expressed in S v PETERSEN 1966 (4) SA 675 (C) at 677A-E as follows:

[4] The object of the Maintenance Act 99 of 1998 is somewhat unique, and differs from that of other criminal legislation. The main object of the Act is manifestly to ensure that minor children are properly supported by their parents. The legislature had the interests of such children in mind, as its primary objective, when it enacted the Maintenance Act. Thus where someone who owes a duty of support fails to comply with a maintenance order, it is often inappropriate to send such a transgressor to prison. The interests of the child or children in question as well as the interests of the community, which includes children, come strongly to the fore, and actually require that the transgressor should not lose his ability to earn an income by being sentenced to effective imprisonment. (See S v MENTOOR 1998 (2) SACR 659 (C)).

[5] These views as well as the views relating to the problems such incarceration would occasion to the accused’s family members and to the State were previously expressed in S v PETERSEN 1966 (4) SA 675 (C) at 677A-E as follows:

“ Vir eerste oortreders is dit na my mening onwenslik om tronkstraf vir hierdie oortreding op to lê. Die beskuldigde, in meeste gevalle, verloor dan sy werk en is daarna gevolglik nie in staat om die betalings te maak en die gesin ly derhalwe nog meer. Die hele doel van die wetgewing kan op hierdie wyse verydel word (vgl. R. v. Becker, 1951 (2) S.A. 162 (T)). Die landdros wys daarop dat as die beskuldigde ses maande gevangenisstraf of nog meer kry die klaagster aansoek kan doen om  onderhoudstoelaag vir die kinders. Hierdie benadering is, myns insiens, heeltemal foutief. Vireers, benewens die feit dat die beskuldigde  las vir die Staat word, word sy verpligtinge onder sulke omstandighede ook op die Staat afgeskuiwe en word hy van noodsaaklikheid om vir sy afhanklikes te voorsien verlos: tweedens is dit die algemene ondervinding dat die toestaan van aansoeke dikwels tyd neem en intussen kry die gesin geen verligting - en is dit ook nie seker dat die aansoek noodwendig toegestaan sal word nie: en derdens, wat gaan die toestand wees as die beskuldigde vrygelaat word en waarskynlik by daardie tyd sy werk verloor het? Daar sal niemand wees om dan vir die kinders te sorg nie. Daar mag gevalle wees waar daar sulke verswarende omstandighede is dat tronkstraf, ook in die geval van eerste oortreders, geregverdig kan word. Maar, myns insiens, sal dit by uitsondering wees.

Normaalweg moet  eerste oortreder die las van  opgeskorte vonnis voel voor hy tronktoe gestuur word, en  kans dry om sy verpligtinge teenoor sy afhanklikes na te kom.” [6] There are, as stated in the above authorities, no doubt cases where an absolute sentence of imprisonment is appropriate. Such cases must be exceptional. Few men would elect to serve a prison sentence rather than make payments under maintenance orders which are within their means. The imposition of an unconditional prison sentence necessarily has the effect of making it impossible for the prisoner to comply with the maintenance order, and pro tanto defeats the intention of the legislature in the Maintenance Act. The provisions of the Maintenance Act should be used as an instrument to make it worth while for the accused to comply with the order of maintenance. (See Becker supra at 165A-C).

“ Vir eerste oortreders is dit na my mening onwenslik om tronkstraf vir hierdie oortreding op to lê. Die beskuldigde, in meeste gevalle, verloor dan sy werk en is daarna gevolglik nie in staat om die betalings te maak en die gesin ly derhalwe nog meer. Die hele doel van die wetgewing kan op hierdie wyse verydel word (vgl. R. v. Becker, 1951 (2) S.A. 162 (T)). Die landdros wys daarop dat as die beskuldigde ses maande gevangenisstraf of nog meer kry die klaagster aansoek kan doen om  onderhoudstoelaag vir die kinders. Hierdie benadering is, myns insiens, heeltemal foutief. Vireers, benewens die feit dat die beskuldigde  las vir die Staat word, word sy verpligtinge onder sulke omstandighede ook op die Staat afgeskuiwe en word hy van noodsaaklikheid om vir sy afhanklikes te voorsien verlos: tweedens is dit die algemene ondervinding dat die toestaan van aansoeke dikwels tyd neem en intussen kry die gesin geen verligting - en is dit ook nie seker dat die aansoek noodwendig toegestaan sal word nie: en derdens, wat gaan die toestand wees as die beskuldigde vrygelaat word en waarskynlik by daardie tyd sy werk verloor het? Daar sal niemand wees om dan vir die kinders te sorg nie.

Daar mag gevalle wees waar daar sulke verswarende omstandighede is dat tronkstraf, ook in die geval van eerste oortreders, geregverdig kan word. Maar, myns insiens, sal dit by uitsondering wees. Normaalweg moet  eerste oortreder die las van  opgeskorte vonnis voel voor hy tronktoe gestuur word, en  kans dry om sy verpligtinge teenoor sy afhanklikes na te kom.”

[6] There are, as stated in the above authorities, no doubt cases where an absolute sentence of imprisonment is appropriate. Such cases must be exceptional. Few men would elect to serve a prison sentence rather than make payments under maintenance orders which are within their means. The imposition of an unconditional prison sentence necessarily has the effect of making it impossible for the prisoner to comply with the maintenance order, and pro tanto defeats the intention of the legislature in the Maintenance Act. The provisions of the Maintenance Act should be used as an instrument to make it worth while for the accused to comply with the order of maintenance. (See Becker supra at 165A-C).

[7] The principle that underlies the above authorities is that first offenders in these kinds of contraventions must generally be given a conditionally suspended sentence. This is the case even if the failure to comply with the maintenance order was deliberate. (See S v BOTHA 1988 (4) SA 402 (C); S v BOIKHUTSO 5 BSC 258 and S v RAPULANA 7 BSC 244). The sentence of a term of imprisonment coupled with an option of a fine was treated as if it was an effective term of imprisonment in Becker’s case. Therefore, the fact that a first offender in a maintenance case was given the option of a fine still does not accord with the forementioned practice of the Court, of suspending the sentence wholly to facilitate compliance with the maintenance order. [8] In any event, in view of the prevailing economic climate in our country, a fine in a case of a failure to pay maintenance serves no useful purpose. An accused should rather be permitted to apply every cent that they earned to their own and their children’s maintenance. To impose fines upon such accused persons, with the result that they had to pay massive amounts into the State’s coffers, derogates from the principle that such persons have to be induced by the criminal sanction to discharge their obligations.

(See S v KOOPMAN 1998 (1) SACR 621 (C)). [9] The conclusion I have reached, on the strength of the principle set out in the above authorities, is that the sentence imposed is inappropriate. It ought to have been suspended wholly on suitable conditions. Those conditions would have had to be designed in such a way as to induce the accused not only to pay the arrears but also to commence payment in accordance with the order that was made in 1998. Assuming that the accused would be able to pay R200.00 over and above the R600.00 that he was ordered to pay in 1998, the proper sentence should, for example, have read more or less as follows: “Six months imprisonment wholly suspended for three years on condition:

[7] The principle that underlies the above authorities is that first offenders in these kinds of contraventions must generally be given a conditionally suspended sentence. This is the case even if the failure to comply with the maintenance order was deliberate. (See S v BOTHA 1988 (4) SA 402 (C); S v BOIKHUTSO 5 BSC 258 and S v RAPULANA 7 BSC 244). The sentence of a term of imprisonment coupled with an option of a fine was treated as if it was an effective term of imprisonment in Becker’s case. Therefore, the fact that a first offender in a maintenance case was given the option of a fine still does not accord with the forementioned practice of the Court, of suspending the sentence wholly to facilitate compliance with the maintenance order.

[8] In any event, in view of the prevailing economic climate in our country, a fine in a case of a failure to pay maintenance serves no useful purpose. An accused should rather be permitted to apply every cent that they earned to their own and their children’s maintenance. To impose fines upon such accused persons, with the result that they had to pay massive amounts into the State’s coffers, derogates from the principle that such persons have to be induced by the criminal sanction to discharge their obligations.

(See S v KOOPMAN 1998 (1) SACR 621 (C)).

[9] The conclusion I have reached, on the strength of the principle set out in the above authorities, is that the sentence imposed is inappropriate. It ought to have been suspended wholly on suitable conditions. Those conditions would have had to be designed in such a way as to induce the accused not only to pay the arrears but also to commence payment in accordance with the order that was made in 1998. Assuming that the accused would be able to pay R200.00 over and above the R600.00 that he was ordered to pay in 1998, the proper sentence should, for example, have read more or less as follows:

“Six months imprisonment wholly suspended for three years on condition:

(i) that the accused is not convicted of a contravention of s 31(1) of Act 99 of 1998, committed during the period of suspension; (ii) that in addition to the maintenance presently payable (to wit R600.00 per month), the accused pays off the arrear maintenance at the rate of R200.00 per month, the first payment to be made on or before 16 January 2001 and subsequent payments on or before the 16th day of each succeeding month.“

(i) that the accused is not convicted of a contravention of s 31(1) of Act 99 of 1998, committed during the period of suspension;

(ii) that in addition to the maintenance presently payable (to wit R600.00 per month), the accused pays off the arrear maintenance at the rate of R200.00 per month, the first payment to be made on or before 16 January 2001 and subsequent payments on or before the 16th day of each succeeding month.“

[10] I am however not in a position to impose a suitable sentence. The reason for this is that there is information which is essential to the making of an appropriate order which is not on record. Firstly, in computing the total amount that represents the arrears, regard must be had to the fact that the accused was paying school fees and also buying some groceries. Presiding officers would be well advised not to adopt too narrow a view about maintenance orders in this regard. While it is true that the accused in this matter did not pay the R600.00 that he was ordered to pay, it would be improper to disregard the fact that he purchased groceries, paid school fees and whatever else he did. After all the R600.00 that he was ordered to pay was intended, inter alia, to serve precisely that purpose. It would be unjust to treat him in the same way as the person who did not make any contribution whatsoever to the maintenance of his children. He must, therefore, be given some sort of a discount that represents the contribution he had been making all these years from 1998. These contributions must be quantified or translated into monetary terms and be deducted from the total of R11 200.00 that represents the arrears. The accused’s salary as well as his other necessary financial obligations must be taken into account in deciding what amount he can reasonably be expected to pay towards

the liquidation of his arrears. More importantly, the presiding officer would, in the light of the accused’s imprisonment, have to consider whether or not the accused is still employed. In sum, the accused’s ability to pay maintenance and the arrears in particular must be assessed and the amount to be paid in satisfaction of the arrears must be determined based on that information. [11] I thus make the following order: (i) The sentence is set aside; (ii) The matter is remitted to the Magistrate to enquire into and compute the accused’s contribution to the groceries, school fees and other needs of the children from October 1998 to the date of conclusion of the enquiry and to assess the amount that he can pay to liquidate the arrears, if any: (iii) The amount that represents the accused’s contribution to the maintenance of the children is to be deducted from the total amount of the arrears as at the date of the finalisation of the exercise in para (ii) above; (v) The sentence is to be considered afresh. M.T.R.

MOGOENG

REVIEWING

JUDGE

[10] I am however not in a position to impose a suitable sentence. The reason for this is that there is information which is essential to the making of an appropriate order which is not on record. Firstly, in computing the total amount that represents the arrears, regard must be had to the fact that the accused was paying school fees and also buying some groceries. Presiding officers would be well advised not to adopt too narrow a view about maintenance orders in this regard. While it is true that the accused in this matter did not pay the R600.00 that he was ordered to pay, it would be improper to disregard the fact that he purchased groceries, paid school fees and whatever else he did. After all the R600.00 that he was ordered to pay was intended, inter alia, to serve precisely that purpose. It would be unjust to treat him in the same way as the person who did not make any contribution whatsoever to the maintenance of his children. He must, therefore, be given some sort of a discount that represents the contribution he had been making all these years from 1998. These contributions must be quantified or translated into monetary terms and be deducted from the total of R11 200.00 that represents the arrears. The accused’s salary as well as his other necessary financial obligations must be taken into account in deciding what amount he can reasonably be expected to pay towards the liquidation of his arrears. More importantly, the presiding officer would, in the light of the accused’s imprisonment, have to consider whether or not the accused is still employed. In sum, the accused’s ability to pay maintenance and the arrears in particular must be assessed and the amount to be paid in satisfaction of the arrears must be determined based on that information.

[11] I thus make the following order:

(i) The sentence is set aside;

(ii) The matter is remitted to the Magistrate to enquire into and compute the accused’s contribution to the groceries, school fees and other needs of the children from October 1998 to the date of conclusion of the enquiry and to assess the amount that he can pay to liquidate the arrears, if any:

(iii) The amount that represents the accused’s contribution to the maintenance of the children is to be deducted from the total amount of the arrears as at the date of the finalisation of the exercise in para (ii) above;

(v) The sentence is to be considered afresh.

M.T.R.

MOGOENG

REVIEWING

JUDGE

I agree M.M.

LEEUW

JUDGE OF

THE HIGH COURT DATED: 02 NOVEMBER 2000

I agree

M.M.

LEEUW

JUDGE OF

THE HIGH COURT

DATED: 02 NOVEMBER 2000

8