Landmark ruling for lavish deadbeat who drove his family into poverty

Businessman Andrei Potgieter has lost his appeal against a four-and-a-half year prison sentence he was ordered to serve in 2018 for failing to pay maintenance for his ex-wife and one child.

Gauteng high court judges Edwin Molehehli and Leonie Windell, in a judgment handed down this week, have ruled that he must hand himself in to the Krugersdorp Correctional Services facility within five days, failing which police have three days from that date to “ensure” he is detained.

Potgieter, who once ran several RJ’s franchises, was prosecuted under provisions of the Maintenance Act for failing to pay his ex-wife and son Keegan, now 25, about R1.2m over four years from August 2012.

The sentence must be shocking, startling or disturbingly inappropriate.

—  Judges

The charges were laid by his ex-wife Louise Nell, who described during the trial how the family had been driven to poverty while he was living “the high life”.

Evidence before Krugersdorp magistrate Abdul Khan was that he had “sold” his successful business to his fiancee for R6m and was now only earning between R25,000 and R30,000 a month.

He claimed he could not afford to pay what he had agreed to in a settlement agreement after their divorce.

Nell, in her victim impact statement before the trial court said: “There were days we simply did not eat.

“In spite of a high court order‚ we lived for nine months without electricity. We would sit around the fire and pretend we were camping. We would boil the swimming pool water and we would take turns in showering in a bucket.

“At the age of 60‚ I have nothing.”

Khan, in handing down the stiff sentence in July 2018, questioned why an “astute businessman” would give up his entire salary and effectively live on what he was given (by his fiancee).

He said the business was sold for no value and was a “smokescreen for him to live a luxurious life, while forcing his ex-wife and children into poverty”.

Potgieter served two months of the effective four-and-half year sentence and was then released on bail after he successfully petitioned the Gauteng high court division for leave to appeal against his sentence.

But the appeal hearing was delayed because he had also petitioned the Supreme Court of Appeal for leave to appeal against his conviction. 

The two appeal judges noted that that application had been defective and Potgieter did nothing to sort it out until May this year, when the sentence appeal was set down to be heard by them.

They said Potgieter had complained that the sentence was “excessive” and that the criminal trial should have been converted into a maintenance inquiry.

“The appeal court’s powers to interfere with the sentence are circumscribed and are limited to those instances where it has been shown that the trial court materially misdirected itself,” the judges said.

“The sentence must be shocking, startling or disturbingly inappropriate.”

They said given that the magistrate had rejected Potgieter’s version that he could not afford to pay maintenance, that the nonpayment was wilful and that he had not even attempted to make any payment for an amount he could afford, there was “no basis” for the criminal proceedings to be converted into a maintenance inquiry.

“On the issue of the sentence, it was found that he had failed to pay maintenance of more than R1.2m over a period of four years.

“The court took into account his personal circumstances, the seriousness of the offences and the interests of society.

“It took into account that he was 53 and that his fiancee was pregnant with another child, who was born while he was in prison.

“It also took into account that the failure to pay maintenance affects the most vulnerable members of the community, namely women and children,” the judges said.

“The stopping of payments was wilful and well-orchestrated. And the trial court took into account the threats and underhanded methods he used in an attempt to force her to accept a lower amount.

“He made no attempt to pay anything while living a luxury lifestyle.”

They said these findings supported the view that the only appropriate sentence was direct imprisonment. While the magistrate had imposed the maximum, six years, he had suspended 18 months of it.

“His (Potgieter’s) conduct drove his family into poverty. This in the context where he had agreed that he would pay maintenance,” the judge said, noting he had shown no remorse.

“He has failed to make out a case that the sentence was inappropriate and shocking to justify interference by this court.”

Nell’s attorney Wesley Rogers said the judgment was a “watershed” ruling and positive for society because for the first time there was now jurisprudence, case law, on the issue of maintenance defaulters.