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South Africa decisions
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S v Kai (R20/2022) [2022] ZAFSHC 143 (6 June 2022)
On automatic review, the High Court confirmed maintenance convictions but held that the sentence on the section 39 count exceeded the statutory maximum and substituted one year imprisonment.
AP v S (A33/2019) [2021] ZAGPJHC 757 (12 August 2021)
The appeal court found that the trial court did not err in imposing a custodial sentence for wilful failure to pay maintenance. The appellant's claim of inability to pay was rejected on the facts, and there was no basis for converting the criminal trial into a maintenance inquiry under section 41 of the Maintenance Act. The trial court properly considered the seriousness of the offence, the impact on the complainant and children, and the appellant's lack of remorse. The sentence imposed was not shockingly inappropriate or vitiated by misdirection. The appeal court held that the sentence was f…
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G.L.R v S (CA&R 41/19) [2020] ZAECGHC 31; 2020 (2) SACR 30 (ECG) (29 April 2020)
The court held that the maintenance order did not lapse automatically when the child attained majority. The wording 'the minor child' identified the beneficiary by reference and did not qualify the duration of the order. The appellant's duty to pay maintenance continued until the order was varied or terminated by the court, regardless of the child's age, as she was not self-supporting. The appellant consciously chose to rely on advice from a layperson, disregarding competent legal advice, and did not act out of ignorance or error. His conduct demonstrated knowledge of unlawfulness and a lack…
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Papers v S (KAP 17/18) [2019] ZANCHC 41; 2019 (2) SACR 638 (NCK) (30 August 2019)
The appeal succeeded because the trial court failed to properly investigate the appellant's ability to pay maintenance and did not convert the proceedings to a plea of not guilty under section 113 of the CPA when a valid defence of lack of means was disclosed. The appellant's section 112(2) statement did not contain sufficient factual admissions to establish all elements of the offence, particularly mens rea. The State did not prove that the appellant's inability to pay was due to unwillingness to work or misconduct. The procedural irregularities and lack of proper enquiry rendered the convic…
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S v Pretorius (A334/2016) [2016] ZAGPPHC 399 (24 May 2016)
On special review, the High Court set aside the Nigel magistrate’s record because no usable original or reconstructed record of the proceedings could be obtained.
S v S.A.M (A211/14) [2014] ZAGPPHC 491 (28 March 2014)
The High Court found that the magistrate failed to conduct a proper enquiry into the accused's financial position as required by section 40(2)(a) of the Maintenance Act. The accused was unrepresented and the scant information available indicated he could not afford the fine imposed, which would inevitably lead to imprisonment. The interests of justice required a fair enquiry into both parties' positions. The delay in processing the review was also criticized as contrary to the interests of justice. The sentence imposed was set aside and replaced with a suspended sentence, conditional on futur…
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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…
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Driescher v S (A439/09 & A354/06) [2009] ZAWCHC 183; 2010 (1) SACR 443 (WCC) (20 November 2009)
The High Court set aside a maintenance conviction where the charge referenced a repealed statute and the record was unclear, remitting the matter for a maintenance enquiry.
S v Dikgopo (44/05) [2005] ZANCHC 73 (1 January 2005)
On special review, the High Court set aside a guilty plea conviction for failure to pay maintenance and remitted the matter for a new hearing.
S v Toolo (79/01) [2001] ZANWHC 39 (20 September 2001)
The High Court set aside a maintenance conviction and sentence after finding the magistrate failed to investigate the accused’s ability to pay and possible defence of inability.
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