S v M (Centre for Child Law as Amicus Curiae)

• Jurisdiction: South Africa
• Judge: Moseneke DCJ, Madala J, Mokgoro J, Ngcobo J, Nkabinde J, O'regan J, Sachs J, Skweyiya J, Van Der Westhuizen J and Navsa AJ
• Judgment Date: 26 September 2007
• Citation: 2008 (3) SA 232 (CC)
• Docket Number: CCT53/06
• Hearing Date: 22 February 2007
• Counsel: PJ Coetzee (with SM Galloway) for the respondent. A Skelton for the amicus curiae. R Paschke as curator ad litem.
• Court: Constitutional Court

Sachs J:

[1] When considering whether to impose imprisonment on the primary caregiver of young children, did the courts below pay sufficient attention E to the constitutional provision that in all matters concerning children, the children's interests shall be paramount?

Background

[2] M is a 35-year-old single mother of three boys aged 16, 12 and 8. In F 1996 she was convicted of fraud and sentenced to a fine coupled with a term of imprisonment that was suspended for five years. In 1999 she was charged again with fraud, and while out on bail after having been in prison for a short period, committed further fraud. In 2002 she was convicted in the Wynberg Regional Court on 38 counts of fraud and four counts of theft. The court took all the counts together for purposes of G sentence. The total amount involved came to R29 158,69. The court asked for a correctional-supervision report. The report indicated that M would be an appropriate candidate for a correctional-supervision order. Despite strong pleas from her attorney that she not be sent to prison the court sentenced her to four years' direct imprisonment. [1] H

[3] The regional magistrate refused to grant bail pending an appeal, but after M had been in jail for three months, the Cape High Court granted leave to appeal and allowed her to be released on bail. The High Court

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A later held that she had been wrongly convicted on a count of fraud involving an amount of R10 000, and, since this reduced the quantum of the remaining counts to R19 158,69, converted her sentence to one of imprisonment under s 276(1)(i) [2] of the Criminal Procedure Act (the CPA). The effect of this change was that after she had served eight months' imprisonment, the Commissioner for Correctional Services (the B Commissioner) could authorise her release under correctional supervision. The court denied her leave to appeal against this sentence to the Supreme Court of Appeal.

[4] M then petitioned the Supreme Court of Appeal for leave to appeal C against the order of imprisonment. The Supreme Court of Appeal turned down her request. It did not give reasons. She next applied to this court for leave to appeal against the refusal of the Supreme Court of Appeal to hear her oral argument, as well as against the sentence imposed by the High Court.

D [5] This court refused the first part of her application, namely, that she be given leave to appeal on the ground that the Supreme Court of Appeal had given no reasons for refusing to hear oral argument. It did, however, enrol her application for leave to appeal against the sentence. The directions by the Chief Justice required the parties to deal with the E following issues only:

I.

What are the duties of the sentencing court in the light of s 28(2) of the Constitution and any relevant statutory provisions when the person being sentenced is the primary caregiver of minor children?

II.

Whether these duties were observed in this case.

III.

If it was to hold that these duties were not observed, what order F should this court make, if any?

The registrar was directed to serve a copy of these directions on the Minister for Social Development and the Minister for Justice and Constitutional Development, who were given the opportunity to file G affidavits if they wished.

[6] Advocate Paschke was appointed curator ad litem. He produced a comprehensive report supported by a report compiled by a social worker, Ms Cawood. The Centre for Child Law of the University of Pretoria was admitted as amicus curiae and Ms Skelton made wide-ranging written H and oral submissions on the constitutional, statutory and social context in which the matter fell to be decided.

[7] The applicant, the curator and the amicus all contended that the

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effect of s 28 of the Constitution was to require sentencing courts, as a A matter of general practice, to give specific and independent consideration to the impact that a custodial sentence in respect of a primary caregiver could have on minor children. On the facts of this case they argued that due consideration of the interests of M's children required that an appropriately stringent correctional-supervision order should be B imposed in place of a custodial sentence.

[8] The National Director of Public Prosecutions replied that current sentencing procedures in the courts already took account of the interests of children, and that on the facts of the case the decision of the High Court should not be interfered with. Counsel for the Department of C Social Development and the Department of Justice and Constitutional Development adopted a similar position, submitting a comprehensive report from a team of social workers to assist the court.

[9] We are grateful to all the above persons for the careful and methodical D manner in which they undertook their tasks. In matters concerning children it is important that courts be furnished with the best quality of information that can reasonably be obtained in the circumstances. The extensive information and thoughtful arguments advanced by all the above-mentioned protagonists in this matter fully meet this standard. Aided by this E most helpful material I respond in sequence to the questions as formulated in the directions.

I. What are the duties of the sentencing court in the light of s 28(2) of the Constitution and any relevant statutory provisions when the person being sentenced is the primary caregiver of minor children? F

(a) The current approach to sentencing

[10] Sentencing is innately controversial. [3] However, all the parties to this

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A matter agreed that the classic Zinn [4] triad is the paradigm from which to proceed when embarking on 'the lonely and onerous task' [5] of passing sentence. According to the triad the nature of the crime, the personal circumstances of the criminal and the interests of the community are the relevant factors determinative of an appropriate sentence. [6] In Banda B Friedman J explained that:

The elements of the triad contain an equilibrium and a tension. A court should, when determining sentence, strive to accomplish and arrive at a judicious counterbalance between these elements in order to ensure that one element is not unduly accentuated at the expense of and to the exclusion of the others. This is not merely a formula, nor a judicial C incantation, the mere stating whereof satisfies the requirements. What is necessary is that the Court shall consider, and try to balance evenly, the nature and circumstances of the offence, the characteristics of the offender and his circumstances and the impact of the crime on the community, its welfare and concern. [7]

And, as Mthiyane JA pointed out in P, [8] in the assessment of an D

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appropriate sentence the court is also required to have regard to the main A purposes of punishment, namely, its deterrent, preventative, reformative and retributive aspects. To this the quality of mercy, as distinct from mere sympathy for the offender, had to be added. Finally, he observed, it was necessary to take account of the fact that the traditional aims of punishment had been transformed by the Constitution. [9] It is this last B observation that lies at the centre of this case.

[11] P confirmed the need for a reappraisal of the juvenile-justice system in the light of the Constitution. The issue was the extent to which the interests of a child should weigh where the child herself was the offender. The present case calls upon us to consider the situation where it is not a C juvenile offender facing sentencing but the primary caregiver of a child. In these circumstances, does the new constitutional order require a fresh approach to sentencing? More particularly, does s 28 of the Constitution add an extra element to the responsibilities of a sentencing court over and above those imposed by the Zinn triad, and if so, how should these responsibilities be fulfilled? D

(b) The significance of s 28(2) of the Constitution

[12] Section 28(2) of the Constitution provides that '(a) child's best interests are of paramount importance in every matter concerning the child'. South African courts have long had experience in applying the E 'best interests' principle in matters such as custody or maintenance. [10] In our new constitutional order, however, the scope of the best-interests

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A principle has been greatly enlarged. [11]

[13] Indeed, it is the very sweeping character of the provision that has led questions to be asked about its normative efficacy. For example, in Jooste Van Dijkhorst J stated:

[The] wide formulation [of s 28(2)] is ostensibly so all-embracing that B the interests of the child would override all other legitimate interests of parents, siblings and third parties. It would prevent conscription or imprisonment or transfer or dismissal by the employer of the parent where that is not in the child's interest. That can clearly not have been intended. In my view, this provision is intended as a general guideline C and not as a rule of law of horizontal application. That is left to the positive law and any amendments it may undergo. [12]

[14] While s 28 undoubtedly serves as a general guideline to the courts, its normative force does not stop there. On the contrary, as this court has held in De Reuck; [13] Sonderup; [14] and Fitzpatrick, [15] s 28(2), read with D s 28(1), establishes a set of children's rights that courts are obliged to enforce. I deal with these cases later. [16] At this stage I merely point out that the question is not whether s 28 creates enforceable legal rules, which it clearly does, but what reasonable limits can be imposed on their application. E

[15] The ambit of the provisions is undoubtedly wide. The comprehensive and emphatic language of s...