WINDHOEKFRED GOEIEMAN
A father who was convicted to 1 000 hours of periodic imprisonment for not paying child maintenance for seven years has successfully appealed his sentence in the High Court.
A periodic sentence is a jail term imposed by a court where a convict may be released for certain periods of time, for example to work during the day.
On Tuesday Elias Izak successfully appealed against the sentence imposed by the Windhoek Magistrate's Court last year and the matter was referred back to the lower court to start fresh sentencing proceedings.
Izak in his appeal stated that the sentence imposed on him was shockingly severe.
He argued that the magistrate in his matter should have imposed a fine and not periodic imprisonment, considering that he is a first offender who pleaded guilty.
Although Judge-President Petrus Damaseb and Judge Nate Ndauendapo held this week that the periodic sentence was justified in the circumstances, the lower court should have garnered further information about the Izak's work schedule.
The magistrate's court had sentenced Izak to 1 000 hours of periodic imprisonment, which he serves from Fridays at 18:00 until Sundays at 16:00, when he is released to work during the week.
In addition, he was ordered to pay his maintenance arrears of N$12 900 in instalments of N$300 a month.
Izak was found guilty of not paying maintenance between January 2004 and September 2012 for his son who is now 15.
He had promised the court during a maintenance hearing in July 2003 that he would support the child by paying N$150, but only paid for a few months before stopping.
The maintenance was to have been paid on or before the 7th of each month.
He had initially told the magistrate's court in 2003 that he had not paid due to human error, but later said he did not have any reason for not paying.
The High Court found that the lower court erred in not establishing whether Izak possibly works on Saturdays until lunchtime, which is in direct conflict with periodic sentence.
“In that case, the court might either not have imposed the periodic sentence or might have fashioned its order to meet the circumstances of the case. That failure constitutes a material misdirection,” the two judges ruled.
The High Court further said that its reversal of the jail term imposed by the lower court was in no way intended to be an indictment on the imposing on periodic sentences, but was only intended to ensure that the key intended objectives of the sentence was not defeated.
In the case of Izak this meant that the sentence had in fact been imposed to allow hi m to continue his work while he served a jail term.
The High Court also made it clear that the setting aside of the periodic sentence has no effect on the magistrate court's maintenance order.