THE State V Nyarugwe & Others

1
                                                                   HH 287-2011
                                           CRB Nos. 6417/11 – 6407/11 – 2402/11
THE STATE
versus
NYARUGWE & OTHERS

HIGH COURT OF ZIMBABWE
PATEL J & KUDYA J

Criminal Review

HARARE, 22 November 2011



      PATEL J:     The scrutinising Regional Magistrate has referred

these three matters to the Registrar for guidance. Although they were

dealt with by two different magistrates, they involve similar facts and

circumstances.

      The accused in all three cases were convicted on their pleas of

guilty to charges of failing to pay maintenance in contravention of section

23 of the Maintenance Act [Chapter 5:09]. In each case, the accused

defaulted on his maintenance obligations in terms of the relevant

maintenance order issued by the Magistrates Civil Court. And in each

case, the accused was sentenced to a term of imprisonment suspended

on condition that he complies with the maintenance order and pays the

maintenance arrears by a specified date.

      The    learned    Acting    Regional     Magistrate      queried     the

appropriateness of the sentences imposed. He is of the view that

allowing a maintenance defaulter time to pay his arrears defeats the

whole purpose of section 23 and is not permitted by that provision.

Instead, the accused should be imprisoned and can only be released in

terms of section 25 of the Act, upon payment of the arrears or if he

makes arrangements for the payment of all such arrears. The learned

trial magistrates take a different view of section 23. They hold that this
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                                                                  HH 287-2011
                                          CRB Nos. 6417/11 – 6407/11 – 2402/11
provision is discretionary in nature and permits the convicting court to

allow the defaulter time to pay his maintenance arrears.

      Sections 23 and 25 of the Maintenance Act, in their relevant

portions, provide as follows:

             “23. (1) Subject to subsection (4), any person against whom
      an order to which this section applies has been made who fails to
      make any particular payment in terms of the order shall be guilty
      of an offence and liable to imprisonment for a period not
      exceeding one year.
             (2) If a person is convicted of the offence referred to in
      subsection (1), the court may, in addition to any penalty which it
      may impose, order that all payments in terms of the order,
      including any payments which are in arrears, shall be made
      through the clerk of the appropriate maintenance court of the
      province or district where the convicted person resides.
             (3) Subject to subsection (4), a person who has been
      convicted or acquitted of an offence referred to in subsection (1)
      and who fails–
             (a)    within two months after such conviction or acquittal;
             or
             (b)    if upon such conviction he was sentenced to and has
             undergone       imprisonment,      other     than     periodical
             imprisonment, within two months after his release from
             such imprisonment;
      to make payments in terms of the order shall be liable to be
      prosecuted again under subsection (1) and his previous conviction
      or acquittal shall not be a bar to his conviction on the later charge.”

             “25. (1) Where a person who has been imprisoned in respect
      of a conviction by a magistrates court for an offence which involves
      the failure to comply with an order for the payment of
      maintenance pays all arrears of maintenance outstanding or
      makes arrangements for the payment of all such arrears, he may
      make application in writing to a magistrate of the court which
      convicted him for his release from prison stating that all such
      arrears have been paid or, as the case may be, the details of the
      arrangements made for the payment of all such arrears.”
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                                                                  HH 287-2011
                                          CRB Nos. 6417/11 – 6407/11 – 2402/11
      Reading the provisions of section 23(1) and 23(2) together, it

appears to me that there is nothing to preclude the convicting court from

suspending all or any portion of the term of imprisonment imposed, on

condition that the accused makes all payments due in terms of the

maintenance order, including any payments which are in arrears by a

fixed date. This is borne out by the wording of paragraphs (a) and (b) of

section 23(3) which specifically envisage the possibility of the accused

being convicted and not necessarily being sentenced to an effective

custodial term. The same possibility emerges from the opening words of

section 25(1).

      I therefore take the view that section 23 of the Act does not

contemplate any mandatory period of imprisonment, and affords the

requisite discretion, where this is deemed appropriate, to allow for the

payment of arrears by a fixed date, through a suspended term of

imprisonment. Such construction does not defeat the purpose of section

23. On the contrary, it accords with its application in circumstances where

compliance with the maintenance order requires that the accused remain

out of custody in order to fulfil his maintenance obligations. Obviously, a

suspended sentence may not be appropriate in the case of a repeat

offender who is prosecuted and convicted under section 23(3). At any

rate, each case must be considered on its own particular merits.



KUDJA J:     I agree.