S v Toolo (79/01) [2001] ZANWHC 39 (20 September 2001)

CA NO : 79/01

IN THE

HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

THE

STATE

vs

JAN

TOOLO

R E

V I E W

LEEUW J:

The accused was convicted of contravention of section 31 (1) of the Maintenance Act No 99 of 1998 (The Maintenance Act) in that he failed to pay maintenance during the period August 1997 to 24th January 2001. The periodical payment of the maintenance towards the child is R200 a month, which order was made on the 15th June 1993.

The accused pleaded guilty to the charge and during questioning in terms of section 112 of the Criminal Procedure Act, he admitted that he was in arrears with the maintenance payments but averred that he was suspended from work for a period of about one (1) year and four (4) months.

He was convicted without the State leading evidence and he stated in mitigation of sentence that he is earning R700 per month, he is married with one minor child. He offered to pay the arrear amount. Without any further investigation into the financial position of the accused, the Learned Magistrate sentenced him to “Eight (8) months imprisonment wholly suspended for a period of 3 yrs on condition that accused is not again convicted of an offence of failure to comply with the maintenance order committed during the period of suspension and in respect of which he is sentenced to imprisonment without an option of a fine. Further that accused pays an additional R100.00 towards liquidation of the arrears with effect from 31/8/01 until the whole arrears are paid up.” I queried the Learned Magistrate for his failure to investigate and consider the circumstances which led to the accused’s failure to pay maintenance, especially because he was unemployed for a considerable period of time. It would also appear that the Learned Magistrate did not take into account the arrear amount which was as a result of the unemployment of the accused and which is prima facie a valid reason for his failure to pay part of the maintenance. In response to my query, the Learned Magistrate stated the following : “The fact that accused was unemployed at some stage was taken into consideration, hence, a suspended sentence was given. The accused was further given a chance to liquidate the arrears.”

He was convicted without the State leading evidence and he stated in mitigation of sentence that he is earning R700 per month, he is married with one minor child. He offered to pay the arrear amount.

Without any further investigation into the financial position of the accused, the Learned Magistrate sentenced him to

“Eight (8) months imprisonment wholly suspended for a period of 3 yrs on condition that accused is not again convicted of an offence of failure to comply with the maintenance order committed during the period of suspension and in respect of which he is sentenced to imprisonment without an option of a fine. Further that accused pays an additional R100.00 towards liquidation of the arrears with effect from 31/8/01 until the whole arrears are paid up.”

I queried the Learned Magistrate for his failure to investigate and consider the circumstances which led to the accused’s failure to pay maintenance, especially because he was unemployed for a considerable period of time. It would also appear that the Learned Magistrate did not take into account the arrear amount which was as a result of the unemployment of the accused and which is prima facie a valid reason for his failure to pay part of the maintenance.

In response to my query, the Learned Magistrate stated the following : “The fact that accused was unemployed at some stage was taken into consideration, hence, a suspended sentence was given. The accused was further given a chance to liquidate the arrears.”

This is a misdirection on the part of the Learned Magistrate because if indeed she had done so, the accused would not have been ordered to pay the arrear amount of R7500; it could have been a lesser amount. The accused raised a defence with regard to the amount of arrear maintenance owing, in that he lacked the means to pay which was not as a result of his unwillingness to pay. See section 31 (2) of the Maintenance Act. The Magistrate was supposed to enter a plea of Not Guilty in terms of section 113 of the Criminal Procedure Act and should have required the State to prove its case. Furthermore, the Learned Magistrate ordered the accused to liquidate the arrear maintenance amount by paying an additional R100-00 to the amount of R200-00 in compliance with the maintenance order that was made in June 1993. See section 40 (2) of the Maintenance Act. The accused has indicated that he is earning an amount of R700-00 per month and has a wife and another child to maintain. His ability to pay the maintenance and the arrear amount was not investigated by the Learned Magistrate. If during the course of the trial it appears to the Learned Magistrate or the Court that it is desirable that a maintenance enquiry be held, then the proceedings can be converted into an enquiry in terms of section 41 of the Maintenance Act. See also S v Magagula 2001 (2) SACR 123 (TPD).

This is a misdirection on the part of the Learned Magistrate because if indeed she had done so, the accused would not have been ordered to pay the arrear amount of R7500; it could have been a lesser amount.

The accused raised a defence with regard to the amount of arrear maintenance owing, in that he lacked the means to pay which was not as a result of his unwillingness to pay. See section 31 (2) of the Maintenance Act.

Furthermore, the Learned Magistrate ordered the accused to liquidate the arrear maintenance amount by paying an additional R100-00 to the amount of R200-00 in compliance with the maintenance order that was made in June 1993. See section 40 (2) of the Maintenance Act.

If during the course of the trial it appears to the Learned Magistrate or the Court that it is desirable that a maintenance enquiry be held, then the proceedings can be converted into an enquiry in terms of section 41 of the Maintenance Act. See also S v Magagula 2001 (2) SACR 123 (TPD).

The conviction and sentence is therefore not in order and the following order is consequently made: “ 1. The conviction and sentence is set aside.

2. The proceedings are remitted to the Magistrate’s Court and a plea of not guilty in terms of section 312 (1) & (2) of Act 51 of 1977 must be entered on behalf of the accused, in terms of section 113 of the same Act; 3. The Public Prosecutor or the Court has the discretion to convert the proceedings into a maintenance enquiry in terms of section 41 of the Maintenance Act No 99 of 1998.”

M

M LEEUW

JUDGE

OF THE HIGH COURT I agree.

B

E NKABINDE

JUDGE

OF THE HIGH COURT 20 SEPTEMBER 2001

The conviction and sentence is therefore not in order and the following order is consequently made:

“ 1. The conviction and sentence is set aside.

2. The proceedings are remitted to the Magistrate’s Court and a plea of not guilty in terms of section 312 (1) & (2) of Act 51 of 1977 must be entered on behalf of the accused, in terms of section 113 of the same Act;

3. The Public Prosecutor or the Court has the discretion to convert the proceedings into a maintenance enquiry in terms of section 41 of the Maintenance Act No 99 of 1998.”

M

M LEEUW

JUDGE

OF THE HIGH COURT

I agree.

B

E NKABINDE

20 SEPTEMBER 2001