S v Nkomo (A974/13) [2013] ZAGPPHC 477 (28 November 2013)

S v Nkomo (A974/13) [2013] ZAGPPHC 477 (28 November 2013)

The High Court found that the accused's explanation—that he had an agreement with the complainant to purchase a cell phone for their daughter in lieu of the additional maintenance payment—was not inherently improbable and was supported by the evidence, including the complainant's own testimony. The total amount spent on the cell phone was nearly equivalent to the amount required by the maintenance order. Applying the principles from R v Difford and related cases, the court held that the accused's version was reasonably possibly true and that he was entitled to the benefit of the doubt. Consequently, the conviction and sentence imposed by the Magistrate's Court were set aside, and the...

Citation
[2013] ZAGPPHC 477
Parties
Respondent: The State; Appellant: Thomas Nkomo
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
28 November 2013
Case Number
A974/13
Procedural Posture
Criminal Review / High Court Review of Magistrate's Conviction and Sentence
Outcome
Conviction and sentence set aside; accused acquitted.
Judges
Molopa-Sethosa, Maumela
Legal Topics
Maintenance Act, Onus of Proof, Reasonably Possibly True, Acquittal, Contravention of Court Order
Criminal Law Maintenance Act Onus of Proof Reasonably Possibly True Acquittal Contravention of Court Order

Case Brief

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Parties

The State

Respondent

Thomas Nkomo

Appellant

Procedural Posture

Criminal Review / High Court Review of Magistrate's Conviction and Sentence

Legal Issues

  1. 1 Whether the accused's explanation that he had an agreement with the complainant to buy a cell phone instead of paying the additional maintenance amount is reasonably possibly true.
  2. 2 Whether the conviction and sentence for contravention of section 31(1) of the Maintenance Act 99 of 1998 should stand in light of the evidence presented.

Ratio Decidendi

The High Court found that the accused's explanation—that he had an agreement with the complainant to purchase a cell phone for their daughter in lieu of the additional maintenance payment—was not inherently improbable and was supported by the evidence, including the complainant's own testimony. The total amount spent on the cell phone was nearly equivalent to the amount required by the maintenance order. Applying the principles from R v Difford and related cases, the court held that the accused's version was reasonably possibly true and that he was entitled to the benefit of the doubt. Consequently, the conviction and sentence imposed by the Magistrate's Court were set aside, and the...

Court Disposition

Conviction and sentence set aside; accused acquitted.

Orders

  • The accused is found not guilty and is acquitted.
  • The clerk of the Magistrate's Court, Pretoria North, is directed to bring this court's order to the attention of the accused.