S v Van der Sandt (218/2013) [2013] ZAFSHC 220 (28 November 2013)

S v Van der Sandt (218/2013) [2013] ZAFSHC 220 (28 November 2013)

The sentence imposed by the magistrate exceeded the statutory maximum prescribed by section 31(1) of the Maintenance Act, rendering it incompetent and irregular. The magistrate exercised discretion regarding conversion to a maintenance enquiry, and there was no basis for interference with that discretion. The interests of justice require that the irregular sentence be set aside and substituted with a competent sentence in accordance with the Act.

Citation
[2013] ZAFSHC 220
Parties
Applicant: The State; Respondent: Jacobus Petrus Van der Sandt
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
28 November 2013
Case Number
218/2013
Procedural Posture
Criminal Review / Special Review Under Section 304(4) of the Criminal Procedure Act
Outcome
The sentence imposed by the magistrate on 19 April 2013 is set aside and substituted with a competent sentence.
Judges
L. M. S. Sesele, M. B. Molemela
Legal Topics
Maintenance Act, Sentencing Irregularity, Magistrate Discretion, Suspended Sentence
Criminal Law Family and Children Maintenance Act Sentencing Irregularity Magistrate Discretion Suspended Sentence

Case Brief

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Parties

The State

Applicant

Jacobus Petrus Van der Sandt

Respondent

Procedural Posture

Criminal Review / Special Review Under Section 304(4) of the Criminal Procedure Act

Legal Issues

  1. 1 Whether the sentence imposed by the magistrate exceeded the statutory maximum under section 31(1) of the Maintenance Act.
  2. 2 Whether the magistrate properly exercised discretion regarding conversion to a maintenance enquiry under section 42 of the Maintenance Act.
  3. 3 Whether the sentence should be set aside and substituted with a competent sentence.

Ratio Decidendi

The sentence imposed by the magistrate exceeded the statutory maximum prescribed by section 31(1) of the Maintenance Act, rendering it incompetent and irregular. The magistrate exercised discretion regarding conversion to a maintenance enquiry, and there was no basis for interference with that discretion. The interests of justice require that the irregular sentence be set aside and substituted with a competent sentence in accordance with the Act.

Court Disposition

The sentence imposed by the magistrate on 19 April 2013 is set aside and substituted with a competent sentence.

Orders

  • The accused is sentenced to one year imprisonment, wholly suspended for five years on condition that he is not convicted of contravention of section 31 of Act 99 of 1998 during the period of suspension.
  • The sentence is antedated to 19 April 2013.