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.

A Sunday Times Daily report says Gauteng High Court Judges Edwin Molehehli and Leonie Windell 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 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.

Evidence before Krugersdorp Magistrate Abdul Khan was that he had ‘sold’ his successful business to his fianceé for R6m and was now only earning between R25 000 and R30 000 a month.

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 for leave to appeal against his sentence.

But the appeal hearing was delayed because he had also petitioned the SCA 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.

‘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.’

According to the Sunday Times Daily report, they said given that the magistrate had rejected Potgieter’s version that he could not afford to pay maintenance, that the non-payment 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.

They said the 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.’

Full Sunday Times Daily report (subscription needed)