THE REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

REPORTABLE

In the matters between:

THE  STATE

and

LIONEL NOVEMBER

High Court Reference Number:          0034557
Case Number:                               396 / 2003
Magistrates' Series Number:             40 / 2003

FRANCOIS PLAATJIES

High Court Reference Number:          0034553
Case Number:                               418 / 2003
Magistrates' Series Number:             39 / 2003

HENRY BROOKS

High Court Reference Number:          0034571
Case Number:                              C940 / 2003
Magistrates' Series Number:            428 / 2003

CHRISTOPHER MEAS

High Court Reference Number:          0034620
Case Number:                              D951 / 2003
Magistrates' Series Number:            434 / 2003

REVIEW JUDGMENT  :  9 DECEMBER 2005
_____________________________________________________________

BOZALEK J:
[1]	These matters came before me on automatic review.

[2]	In each case the accused was convicted in the magistrates court, on a plea of guilty, of contravening s 31(1) of the Maintenance Act, 99 of 1998 (“the Act”) by failing to comply with a maintenance order in respect of a dependant. All of the accused were required to make payments in respect of the maintenance of minor children whom they had fathered. 

[3]	The convictions are in order. In each case a similar sentence was imposed, namely, a sentence of imprisonment ranging between 8 and 12 months, suspended for four years on two conditions. The first condition was that the accused was not found guilty during the period of suspension of a further contravention of s 31(1) of the Act. The second condition gave rise to the query directed to the various magistrates and was that the accused pay off the arrear maintenance at a specified rate per month. In each instance, however, either the rate or the term of repayment appeared completely inadequate in relation to the total arrears, taking into account the accuseds’ financial capacity. The relevant facts in each case are as follows:

	MR. L NOVEMBER
[4]	The accused’s arrears amounted to R2000,00 which, in terms of the condition of suspension, he was required to repay at the rate of R50,00 per month i.e. over a period of 40 months. However, prior to being sentenced, the accused advised the court that he had money available and could immediately pay the sum of R3000,00 towards the arrears. In his reply to my query the magistrate states that he now realises that he should have inquired into “the availability” of the amount of R3000,00.

	MR. C MEAS
[5]	The arrears owing by the accused amounted to R7450,00 and he was ordered to pay this amount off at the rate of R100,00 per month over and above his continuing obligation to pay the sum of R400,00 per month in respect of the maintenance of his three children. If the accused pays this sum regularly it will take him more than six years to extinguish the arrears. The record reveals that the accused worked as a bricklayer earning approximately R1700 per month. The magistrate appears to have conducted no enquiry into what the accused could afford to pay in respect of the arrears. 

	MR. F PLAATJIES
[6]	Mr. Plaatjies failed to comply with an order requiring him to pay R250,00 per month in respect of his child. His total arrears amounted to R3060,00 and had accumulated over thirteen months which indicates that he had paid little, if anything, during that year. The relevant condition of his suspended sentence was that, over and above his existing maintenance obligation, he should pay the sum of R25,00 per month. At this rate, and assuming payments are regularly made, it will take him more than ten years to settle his arrears. The accused could offer no reason at all for failing to comply with his maintenance obligations. The evidence was that he earned approximately R1100,00 per month leaving some R850,00 after payment of his maintenance obligations. Once again the record reveals no enquiry by the magistrate as to what amount the accused could afford to pay in reduction of arrears. In response to the query the magistrate advised that he intended that the accused should pay off the arrears of R125 per month and requested that his sentence be amended accordingly. 

	MR. H BROOKS
[7]	Mr. Brooks’ conviction arose out of his failure to pay R300,00 per month in respect of his child during the period October 1999 to August 2003. His arrears amounted to R11 800,00 meaning that he paid only some R2600,00 in maintenance over that period. The accused stated that his failure to comply with the maintenance order was a result of a “mistake”, the precise nature of which was neither furnished nor sought. At the time of sentencing he was working in Gauteng earning R1000,00 per week from which R400,00 was deducted at source in respect of various expenses. Although he had four children, apart from his dependant child in terms of the maintenance order, his wife also worked. The accused therefore had at his disposal some R2300,00 per month to cover the balance of his and his family’s monthly expenses and to pay off his arrear maintenance i.e. after the weekly deduction from his salary of R400,00 in respect of various expenses and after payment of his R300,00 maintenance obligation. Notwithstanding this, no enquiry was held by the magistrate as to what the accused could afford to pay towards the arrears and instead he was simply ordered to pay R100,00 per month towards the arrears. At this rate, and assuming regular payment, it will take the accused some ten years to pay off the arrears which accumulated over a period of four years. In his reply to my query the magistrate cites as reasons for the particular condition his belief that the cost of living in Gauteng is higher than elsewhere and his desire not to impose an obligation upon the accused which he could not meet. He concedes, however, that he should have inquired into the accused’s financial circumstances in more detail. 

DISCUSSION
[8]	In my view, each one of these cases represents a failure of justice vis á vis the complainant and the minor children in respect of whom the maintenance was payable. Quite apart from the fact that none of the defaulting parties offered any valid reason for their failure to meet their obligations, the terms upon which they were required to pay off the arrears were so lenient as in some cases to be indefensible. The underlying reason for these inappropriate orders stemmed from the failure by the presiding officer to conduct a proper enquiry into the accused’s financial circumstances in order to ascertain what he could reasonably be required to pay in respect of the arrears rather than what he offered to pay or what the magistrate simply thought was appropriate. Another likely reason for the leniency of the terms of repayment was a failure to view the accused’s’ non-compliance in a sufficiently serious light.

[9]	Both the Supreme Court of Appeal and the Constitutional Court have recently had occasion to emphasize the need for the courts to use the provisions of the Maintenance Act to ensure that the rights and best interests of children are upheld, as entrenched in s 28 of the Constitution, by holding parents to their duty to maintain their children. 

[10]	In Bannatyne v Bannatyne (Commission for Gender Equality, as amicus curiae) 2003(2) SA 363 (CC), Mokgoro, J speaking for a unanimous court stated as follows (at paragraph 27): “Systemic failures to enforce maintenance orders have a negative impact on the rule of law. The courts are there to ensure that the rights of all are protected. The Judiciary must endeavour to secure for vulnerable children and disempowered women their small but life-sustaining legal entitlements. If court orders are habitually evaded and defied with relative impunity, the justice system is discredited and the constitutional promise of human dignity and equality is seriously compromised by those dependent on the law. It is a function of the state not only to provide a good legal framework, but to put in place systems that will enable these frameworks to operate effectively. Our maintenance courts and the laws that they implement are important mechanisms to give effect to the rights of children protected by section 28 of the Constitution. Failure to ensure their effective operation amounts to a failure to protect children against those who take advantage of the weaknesses of the system.” 

[11]	The Maintenance Act was passed after the South African Law Commission conducted a review of the maintenance system in South Africa. Chapter 4 of the Act provides for the granting of maintenance and ancillary orders by a maintenance court, while chapters 5 to 7 set out the civil and criminal procedures in enforcing such orders. As was recently stated by Van Heerden AJA (as she was then) in S v Visser 2004(1) SACR 393 at 399E – F: 
“Effective enforcement of maintenance payments is necessary, not only to secure the rights of children but also to uphold the dignity of women and promote the constitutional ideals of achieving substantive gender equality. It is therefore important that courts regard deliberate failures to comply with maintenance orders as serious offences and punish such failures accordingly.” 
In order to do so it is necessary for prosecutors (as maintenance officers) and magistrates sitting in such matters to inform themselves of the range of available sentencing options such as correctional supervision in terms of s 276(1)(h) and (i) of the Criminal Procedure Act, 51 of 1977 or periodical imprisonment in terms of s 285 thereof. Equally important is that officials inform themselves of the comprehensive range of tools and procedures available in the Act to ensure that the best interests of children are protected by the proper enforcement of maintenance orders. 

[12]	Section 40 of the Act deals with the recovery of arrear maintenance and provides that a court with civil jurisdiction convicting a person of an offence under Section 31(1) may grant a separate order for the recovery from such person of any amount he or she has failed to pay in accordance with the maintenance order, together with interest thereon. Such an order has the effect of a civil judgment and is executable. The selfsame court can authorise the issue of a warrant of execution against the movable or immovable property of the convicted person after an enquiry held in terms of section 40(3). Apart from this power a court sentencing for a contravention of section 31(1) of the Act will always retain the power to order, as an appropriate condition of suspension of imprisonment, that the defaulter pays off his arrears by way of regular instalments. Needless to say, no such order or condition should be made without a proper enquiry being conducted by the court into the accused’s financial circumstances. Furthermore, the instalment should be set on the basis that maintenance is a primary obligation on the part of the defaulter and not one which ranks equally with every other expense which the defaulter may have. 

[13]	These measures and remedies exist over and above those available to a custodian parent in terms of s 26 of the Act which provides, on application, for the enforcement of maintenance orders, to the extent of the arrears thereon, together with interest, inter alia by execution against the defaulter’s property and by the attachment of emoluments or any debt owing to such person. These remedies are available to an aggrieved party without the necessity of the defaulting party having to be convicted of contravening s 31(1). Given the existence of these separate civil remedies it is all the more important that conditions of suspension of terms of imprisonment, such as were imposed in the present matters, are properly fashioned taking into account the defaulter’s financial means. In this way the rights and remedies of the beneficiary of the maintenance order are not potentially undermined or superseded by the imposition of an unrealistic and lenient condition of suspension on the defaulter relating to the payment of arrear maintenance. 

[14]	Applying these principles to the present matters I can see no reason why in each case the defaulter was not ordered to pay his arrears at a realistic rate and why interest was not levied on the capital sum. The levying of interest would at least partly compensate for the loss in the value, through inflation, of the missed instalments and help to ensure that non-payment of maintenance arrears is not treated as a form of cheap credit by defaulters. Furthermore, proper financial enquiries in each case might have brought to light that the accused had monies available, or readily realisable assets, to pay off all or part of the outstanding arrears. In that event an appropriate condition of suspension of the imprisonment would have been payment of such a sum within a specified time. 

[15]	The circumstances of Mr. L November was a case in point. Of his own volition he volunteered that he could pay the sum of R3000,00 within a few days. Only R2000,00 would have settled his entire arrears. It is inexplicable in these circumstances why an order was not made by the magistrate in terms section 40(1) of the Act which would have had the effect of a civil judgment for the arrears and interest thereon. Alternatively, payment of the appropriate sum in settlement of the arrears plus interest within a short period could have been made a condition of suspension of the period of imprisonment. Similar enquiries could have been held in the case of the other three defaulters and in each case a more realistic figure in respect of monthly instalments on arrears should have been set together with provision for payment of interest. In appropriate cases warrants of execution in terms of section 40(1) could have been authorised. A more rigorous approach by presiding officers will help to bring home to defaulters that maintenance obligations can not be ignored with impunity in the expectation that, if a conviction eventually follows, it will invariably lead to no more than a suspended term of imprisonment coupled with lenient terms of repayment in respect of the arrears.

[16] 	All that said, however, the question is whether it is open to this court, on review, to set aside the relevant conditions and either remit the matter back to the magistrate for reconsideration or impose more stringent conditions or orders providing for payment of the arrear maintenance owing. The answer unfortunately must be that this court cannot interfere since to do so would be in effect to make the sentence more onerous for the accused. This principle was stated by Rose-Innes J in S v Morris 1992(2) SACR (C) as follows: 
“It is established by now that the powers of this Court on automatic review, which powers are conferred by s302(2)(a) of Act 51 of 1977, do not include the power to increase a sentence or to make an order more onerous for the accused, where the sentence or order was a competent sentence or order of the magistrate’s court, nor can this Court on such a review set aside the sentence or order and remit the matter to the magistrate’s court for that purpose. R v Froneman and Froneman, 1941 TPD 74; R v Fletcher, 1941 EDL 255; R v Bornman, 1960(3) SA 86 (E); S v Haasbroek, 1969(1) SA 356 (E); and S v Msindo, 1980(4) SA 263 B… 

A suspended sentence consists of the penalty imposed and the conditions upon which the penalty is suspended which are part and parcel of the sentence which is taken on review in an automatic review, so that the Court may, in a proper case, correct the penalty or the terms of the conditions of suspension, or both, but in so doing it cannot increase or render more onerous either the penalty or the conditions of suspension.”

[17]	In the circumstances the various conditions imposed by the magistrates must stand. This unsatisfactory result, seen from the perspective of the complainants and their minor children, further emphasizes the need for magistrates to carefully consider the most appropriate order in situations such as these and in so doing to have regard to the full range of remedies and procedures at their disposal in terms of the revamped Maintenance Act of 1998. 

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  LJ BOZALEK, J

MOTALA, J:   I agree.

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								           AM MOTALA, J