Recent Case: Sentencing

• Jurisdiction: South Africa
• Pages: 398-416
• Published date: 06 September 2019
• Date: 06 September 2019
• Author: Jamil Ddamulira Mujuzi

Sentencing

JaMil DDaMUlira MUJUZi

University of Western Cape, Bellv ille

Sentencing primary caregivers of young children

Traditionally a judicial off‌icer was not required to consider the ef fects

of the imposed sentence on the children of the offender, even if the

offender was a primary caregiver of young children. The Court in S v M

(Centre for Child Law as Amicus Curiae) 2007 (2) SACR 539 (CC) [2007

(12) BCLR 1312] (discussed in detai l in Mujuzi (2011) 2 SACJ 164 –177)

held that, in sentencing prim ary caregivers of young chi ldren, courts

should inquire into the effects the sentence will have on such children

and, where possible, impose a non-custo dial sentence to ensure that

the children are not deprived of the care and support of the prima ry

car eg iver.

In MS v S (Centre for Child Law as Amicus Curiae) 2011 (2) SACR 88

(CC) the Constit utional Cour t dealt with the question of i mprisoning

a primar y caregiver of young children. Mrs S pleaded gu ilty and was

convicted by the regional court of forgery, uttering and fraud (at para 4).

She pleaded in m itigation that she h ad commit ted the offences as ‘a

result of paying for her daughter’s medical fees’ as ‘her children require

special care’ (at para 5). A pre-sentencing report prepared for the state

after interviews with Mrs S’s previous employer and her husband’s

398 SACJ . (2011) 3

(2011) 24 SACJ 398

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family port rayed her as ‘manipulative, di shonest, greedy, sly and as a

troublemaker, who drank alcohol in excess. It also presented her as

being irresponsible in the management of her f‌inances.’ The report

also found that ‘should a custodi al sentence be imposed, there would

be an adeq uate fam ily support system to c are for the children, and

that Mrs S’s mot her-in-law would as sist Mr S to care for the child ren’

(ibid). On the counts of forgery and utteri ng she was sentenced to

two years’ imprisonment, conditionally suspended for f‌ive years. On

the count of f raud she was sentenced to f‌ive years’ impri sonment in

terms of s 276(1)(i) of the Criminal Procedure Act (at para 7). This

means that the Commissioner or the parole board had the discretion to

place Mrs S on correctional supervision. ‘In determining her sentence,

the court took into account that Mrs S’s mother-in-law had agreed to

assist Mr S to look after the child ren’ (at para 7). Mrs S’s appeal to the

Supreme Court of Appeal was dismissed . It should be noted th at the

High Court and Supreme Court of Appeal also considered the evidence

of Mrs S’s social worker, whose report portrayed Mrs S as ‘a loving and

caring mother who maintained gainful employment in order to provide

for the family’ (at para 12). Mrs S’s argument before the Constitutional

Court was that (at para 23; see also para 30 for other arg uments):

‘…the courts did not consider the interests of the children when they

considered her sentence… [T]hat the regional court did not take heed of the

best interests of the minor children in terms of s 28 of the Constitution, in that

no inquiry was conducted to establish if Mrs S was a primary caregiver. Had

this inquiry been conducted … a custodial sentence would not have been

imposed, as its imposition would render the children without a caregiver…’.

Counsel for the state arg ued that this case was di stinguishable f rom

S v M in a sense that Mr S was avail able to take care of the ch ildren

should Mrs S be imprisoned (at para 26; see also para 33). However,

counsel for Mrs S submitted that the evidence of Mrs S’s social worker

‘had established that Mr S was prevaricating about shouldering the

responsibility of caring for the children, that his mother was no longer

available and willing to assist in the care of the chi ldren, and that

incarcerating Mrs S would be so traumatic as to deleteriously affect

the interests of the children’ (at para 32). At the request of the amicus

curiae (at para 27) the Constitutional Court appointed a curator ad

litem whose report showed, inter alia, that Mrs S’s daughter was 8 years

old and in Grade 3 and that the son was 5 years old and Grade R. The

curator’s report also showed that the educational psychologists and the

school headmistress had informed her that ‘Mrs S is the primary source

of the children’s emotional security a nd attends to their day-to-day

activities, such as preparing them for school and collecting them from

school.’ The report also indicated that Mrs S’s imprison ment would

‘have a deleterious effect’ on the children’s ‘emotional and material

Recent cases 399

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