REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA WESTERN CAPE HIGH COURT, CAPE TOWN

In the matter between:

vs

JUDGMENT DELIVERED ON 20 NOVEMBER 2009

YEKISO, J

[1] The appellant was summoned to appear in the Magistrate's Court, Knysna on a charge of contravening the provisions of section 11(1) of the Maintenance Act, 23 of 1963. The charge arose out of the order of the Southern Divorce Court, sitting at Bredasdorp when, on 2 June 2005, the Divorce Court ordered the appellant to pay maintenance in respect of the complainant, one Jeanette Driescher, in an amount of R5,500.00 per month with effect from 1 July 2005.    Payment of maintenance was conditional upon the appointment of a receiver to the parties' joint estate who were, prior to the dissolution of the marriage, married to each other in community of property, and on an equitable distribution of the parties' joint assets to the parties themselves. It was anticipated that once the parties' joint assets were equitably distributed amongst them, the appellant's obligation to pay maintenance would lapse. In terms of the consent paper entered into between the parties, which was subsequently made an order of court, a receiver to the parties' joint estate would have had to be appointed as soon as possible. No receiver was appointed until the appellant was summoned to appear in court to answer a charge of failing to pay maintenance in contravention of the maintenance order. The appellant was required to appear in court on 21 May 2006. As at date of his appearance in court on 21 May 2006, almost a year after the order was made, the appellant had made payments totalling an amount of R8,000.00 and the arrears allegedly due were in an amount of R59,175.00.

[3] On a recorded plea explanation in terms of section 115 of the Criminal Procedure Act, 51 of 1977 the appellant is recorded to have had this to say, amongst other things:
"-    Die egskeidingsbevel se ek betaal R5,500.00 onderhoud tot sekere goed gedoen moet word.
	Hulle moes dit doen.
	Ek het gese ek is bekommerd daaroor en kan net vir tydperk betaal daarvoor.
	Ek het twee maande betaal en niemand het na my teruggekom om die waarde te bepaal."

Amongst the admissions made in terms of section 220 of the Criminal Procedure Act, the appellant had this further to say:

nie na nie. (2) Klaagster sloer en verontagsaam die bevel (samewerking met wat ooreengestem het is) opsetlik (met opset) (3) Klaagster verskaf geen inligting of korrespondeer geensins nie."

[9]  In the result I would propose the following order:

[9.1.] That the conviction of the accused and the subsequent sentence imposed for contravening the provisions of section 31(1) of the Maintenance Act, 1998 be and are hereby set aside.

[9.2.] The matter is remitted to the Magistrate, Knysna, for an enquiry to be held in terms of section 10 of the Maintenance Act, 1998 provided that such an enquiry shall not be held by the magistrate who presided at the, teal.

										

										I agree.

It is so ordered.