Court name
High Court Main Division
Case name
Izack v S
Media neutral citation
[2013] NAHCMD 207
Judge
Damaseb JP
Ndauendapo J













REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK



JUDGMENT



CASE NO.: CA 15/2013



ELIAS IZAK
.................................................................................................APPELLANT



and



THE STATE
..............................................................................................RESPONDENT








Neutral citation:
Izack v The State (CA 15/2013)[2013] NAHCMD 207 (23 July 2013)








Coram: DAMASEB,JP
et NDAUENDAPO,J



Heard on: 22 July 2013



Delivered on: 23 July
2013








Fly note: Criminal
appeal - Appeal against sentence of periodical imprisonment for
failing to comply with a maintenance court order to pay maintenance
for a minor child.



Summary: The
appellant who had previously been ordered to pay maintenance in the
amount of N$ 150 per month in respect of the maintenance of his minor
son failed to comply with the court order and was, upon own plea of
guilty, sentenced to 1000 hours of community service. The appellant
now appeals against sentence on the ground that the sentence is
shockingly inappropriate. The appeal succeeds.



Held, that failure
to pay maintenance constitutes domestic violence in terms of
Combating of Domestic Violence Act, 4 of 2003; such failure not a
peccadillo to be visited with light sentences;



Held, Appeal court
will not lightly interfere with a sentence intended to ensure that a
father makes sure he takes responsibility to pay maintenance
seriously.



Held, further,
Court satisfied that periodical imprisonment was justified in the
circumstances but that the trial court ought to have elicited further
information about the accused’s working schedule. Appeal
succeeds and matter remitted to the Magistrates’ court to
consider the sentencing afresh.








ORDER



___________________________________________________________________



1. The appeal on sentence
succeeds;



2. The sentence of
periodical imprisonment imposed by the maintenance court is set
aside;



3. The matter is referred
back to the magistrate who imposed the sentence to consider the
sentence afresh and to then deal with the matter according to law.








JUDGMENT



­­­­­­­­­­­­­­­___________________________________________________________________



DAMASEB, JP (NDAUENDAPO,J
CONCURRING):



[1] This an appeal from
the maintenance court for the Windhoek district. The appellant (whom
I shall hereafter refer to as the ‘accused’) was properly
convicted on his own plea of guilty for failing to pay maintenance in
respect of his minor child. After his conviction, the magistrate
imposed a sentence of 1000 hours of periodical imprisonment on
Fridays at 18H00 until Sunday at 16H00; and, in addition, ordered the
accused to pay the arrear maintenance of N$ 12 900 in the amount
of N$300 per month with interest at the rate of 20 % per annum. The
effect of the sentence is that he reports for incarceration on a
Friday at 18h00 and is then released at 16H00 on Sunday.



[2] At the plea
proceeding, the magistrate first explained to the accused that the
law allows him the defence of ‘no means’, being the
inability to pay and then asked him why he did not pay maintenance.
The accused’s answer was startling: He initially stated that it
was through human error that he did not pay, but upon further
questioning said that that he really did not have any reason for not
paying.



[3] In his reasons for
sentencing, the magistrate stated that failure by fathers to pay
maintenance is very prevalent and has become a serious problem in our
society. He added that those most detrimentally affected by this
failure are the children for whose benefit maintenance orders are
granted.



[4] The
accused comes to this court on appeal,
claiming
that the sentence imposed on him was shockingly severe. He says that
the magistrate ought to have imposed a fine in preference to
periodical imprisonment, considering that he is a first offender who
pleaded guilty.



Brief history



[5] The accused was
initially charged for his failure to pay maintenance and appeared
before a maintenance court on 8 July 2003. After a postponement, the
inquiry took place on 15 August 2003. At that hearing he agreed to
pay maintenance in the amount of N$150 per month. An order was made
for him to pay that amount on or before the 7
th
of every month. It was an
order he was never to obey. He was then charged with contravening s
39(1) of the Maintenance Act, 9 of 2003 for accumulating unpaid
arrears totalling N$12 900 spanning the period January 2004 to
September 2012. Section 39(1) states that any person who disobeys a
court order by failing to make a particular payment in accordance
with a maintenance order commits an offence and is liable to a fine
not exceeding N$4000, to imprisonment not exceeding 12 months or to
periodical imprisonment.
1
The magistrate also
ordered him to pay the N$12 900 in monthly instalments of 300 per
month as he was entitled to do in terms of s 33 of the Maintenance
Act.



The magistrates
reasoning considered



[6] The accused’s
case before this court is that the magistrate erred in not imposing a
fine. The magistrate exercised a discretion. He could have imposed a
fine, a prison term of up to 12 months, impose periodical
imprisonment of 100 hours or more. He chose the latter option and in
so doing exercised a discretion. Sentencing is pre-eminently a matter
for the trier of fact and a court of appeal will not lightly
interfere with a sentence imposed by the trial court unless that
court misdirected itself in the sentencing procedure; failed to take
relevant factors into consideration or otherwise, the sentence is
shockingly severe. The court a quo correctly took into account
the neglect of children by fathers and the effect that has on
children.



[7] The accused is not a
man who had difficulty raising money to pay for the maintenance. He
just chose not to do so, while knowing there was a court order
obliging him to pay. He was completely unperturbed by the consequence
this had on his child. The accused stated to the magistrate that the
minor child was then 15 years old, meaning by the time the order was
made for him to pay maintenance that child was 7 years old. The child
now has only about 7 years before reaching the age of majority.



[8]
Considering that the
court order requiring accused to pay maintenance took effect on 1
September 2003, he only made payments for three months and ceased
payment. He had therefore not paid maintenance for the child for a
staggering period of eight years. What is more, the amount he was
ordered to pay was very small in my view and probably counts for
nothing in today’s money value. A maintenance order is for the
benefit of a child and not the custodian parent.



[9] It
is important that fathers realise that the tide has turned against
those who neglect their children; and that this court will not
readily interfere with trial courts’ sentences against those
who are found guilty of the malpractice. The Combating of Domestic
Violence Act
2
defines3
domestic abuse to,
amongst others, include:



the
unreasonable deprivation of any economic or financial resources to
which the complainant or a family member or dependant of the
complainant is entitled under any law, requires out of necessity or
has a reasonable expectation of use ... ’



[10] A child is in a
domestic relationship with its biological father in terms of s 3
4
of the Combating of
Domestic Violence Act.



[11] It
must be clear therefore that failure to pay maintenance for a child
is not a peccadillo to be visited with a slap on the wrist –
even for first offenders. Economic abuse is a species of domestic
violence as the Combating of Domestic Violence Act stipulates. As
this court said in
S
v Gaweseb
5:



The purpose
of maintenance orders is to help children with day-to-day
necessities. If the sentence to be imposed is one which makes sure
that an errant parent does not default again and/ or one which seeks
to recover arrear payments, it must be given serious and careful
consideration, based, of course, on the facts of each case...’
6



[12] The intent clearly
behind the sentence imposed by the magistrate was two fold:



(i) to on the one hand
ensure that he remains employed to earn an income from which to pay
maintenance, and



(ii) to send a clear
message, by imposing periodical imprisonment, that failure to pay
maintenance will not be counteracted by the courts.



[13] I must agree with Mr
Uanivi’s contention in argument, conceded by the state, that
given that the accused was unrepresented at his trial, the magistrate
ought to have elicited more information to establish if imposing
periodical imprisonment would not in the circumstances have the
contrary effect. Although the court can take judicial notice that an
employee such as the accused does not work on Sundays, it cannot take
judicial notice that he does not work on Saturdays until at least the
lunch hour. Had the magistrate elicited more information in that
regard, it is possible that the accused works, on the very least, on
Saturdays until the lunch hour. In that case, the court might either
not have imposed periodical imprisonment, or might have fashioned its
order to meet the circumstances of the case. That failure constitutes
a material misdirection.



[14] We feel this is an
appropriate case to remit the matter to the court a quo to
consider the sentence afresh in the light of this judgment. We wish
to make clear that our reversal of the sentence imposed is in no way
a disapproval of the imposition of periodical imprisonment but is
only intended to ensure that one of the key objects intended by the
sentence is not defeated. The reversal also does not affect the
magistrate’s order in terms of s 33 of the Maintenance Act.



[15] In the premises, we
make the following order:



1. The appeal on sentence
succeeds;



2. The sentence of
periodical imprisonment imposed by the maintenance court is set
aside;



3. The matter is referred
back to the magistrate who imposed the sentence to consider the
sentence afresh and to then deal with the matter according to law.













____________________________



P T DAMASEB



Judge President








____________________________



N NDAUENDAPO



Judge



APPEARANCE:








APPELLANT V UANIVI



OF UANIVI LAW CHAMBERS








RESPONDENT C N
ESTERHUIZEN



OF OFFICE OF THE
PROSECUTOR GENERAL


































1In
accordance with s 285 of the Criminal procedure Act, 51 of 1977.





2Act
4 of 2003.





3Section
2(1) (c).





4Subsection
(1) (d).





52007
(2) NR 600.





6At
603, para 14F.