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

• Jurisdiction: South Africa
• Citation: 2008 (3) SA 232 (CC)

S v M (Centre for Child Law as Amicus Curiae)
2008 (3) SA 232 (CC) [*]

2008 (3) SA p232

Citation	2008 (3) SA 232 (CC)
Case No	CCT53/06
Court	Constitutional Court
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
Heard	February 22, 2007
Judgment	September 26, 2007
Counsel	PJ Coetzee (with SM Galloway) for the respondent.; A Skelton for the amicus curiae.; R Paschke as curator ad litem.

Flynote : Sleutelwoorde G

Constitutional law — Rights of children — Duties of court when sentencing primary caregiver of minor children — Comprehensive and emphatic language of s 28 indicating law enforcement must always be child-sensitive — Unusually comprehensive and emancipatory character of s 28 presupposing that sins of parents should not be visited on their children — H Paramountcy principle, read with right to family care, requiring interests of children to be affected to receive due consideration — Not meaning all other considerations to be overridden, but rather that appropriate weight be given to interests of children concerned.

Constitutional law — Rights of children — Best interests of child paramount in every matter affecting child — Section 28(2) of Constitution — Paramountcy I principle — Principle not to be applied in way that obliterated other

2008 (3) SA p233

valuable and constitutionally protected interests — 'Best interests' injunction A capable of limitation and fact that best interests of child were paramount not meaning that they were absolute — As with all other rights in Bill of Rights, their operation having to take account of their relationship to other rights, which might require that their ambit be limited.

Criminal procedure — Sentence — Imposition of — Factors to be taken into account — Where convicted person primary caregiver of minor children B — Sentencing court to (1) determine whether accused was primary caregiver; (2) ascertain effect on children of custodial sentence; (3) if sentence custodial and accused primary caregiver, consider whether necessary to ensure children would be adequately cared for while caregiver incarcerated; (4) if sentence non-custodial determine whether sentence bearing in mind interests of children; and (5) if range of appropriate sentences C available, use paramountcy of best interests of child as important guide in deciding on sentence.

Headnote : Kopnota

The applicant, a 35-year-old divorced mother of three boys aged 16, 12 and 8, was convicted in 2002 on 38 counts of fraud and sentenced to four years' direct imprisonment. Among the factors considered by the magistrate was D her record of previous convictions for fraud: she had received a fine and a suspended sentence in 1996 and, during the period of suspension, had again been charged with fraud. While out on bail on those charges, she had committed further fraud. On appeal to the High Court, her conviction on one of the 38 counts, comprising R10 000 out of a total of R29 000, was set aside. Consequently, the High Court converted her sentence to one of E imprisonment under s 276(1)(i) of the Criminal Procedure Act 51 of 1977, the effect of which was that she would become eligible for release under correctional supervision after serving eight months' imprisonment. A petition to the Supreme Court of Appeal for leave to appeal against the order of imprisonment was turned down, following which the applicant approached the Constitutional Court. That court enrolled her application F for leave to appeal against the sentence, the Chief Justice directing that the parties would be required to deal with three issues only: what the duties were of a sentencing court in the light of s 28(2) of the Constitution, and of any relevant statutory provisions, when the person being sentenced was the primary caregiver of minor children; whether these duties had been observed in casu; and, if they had not been observed, what order, if any, the court should make. G

Duties of a court sentencing a primary caregiver of minor children

Held, (per Sachs J; Moseneke DCJ, Mokgoro J, Ngcobo J, O'Regan J, Skweyiya J and Van der Westhuizen J concurring) that the ambit of s 28 of the Constitution was undoubtedly wide. The comprehensive and emphatic H language used in the section indicated that, just as law enforcement must always be gender-sensitive, so it must always be child-sensitive; statutes must be interpreted and the common law developed in a manner that favoured protecting and advancing the interests of children; and courts must function in a way that showed due respect for children's rights. Section 28 was also to be seen as an expansive response to South Africa's I international obligations as a State party to the UN Convention on the Rights of the Child. The four great principles of this convention which, as international currency, guided all policy in South Africa in relation to children, were survival, development, protection and participation. What united these principles, and what lay at the heart of s 28, was the right of a child to be a child and to enjoy special care. Every child had his or her own J dignity; each child was to be constitutionally imagined as an individual with

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A a distinctive personality, and not treated as a mere extension of his or her parents. The unusually comprehensive and emancipatory character of s 28 presupposed that the sins and traumas of fathers and mothers should not be visited on their children. (Paragraphs [15] - [18] at 244E - 246C.)

Held, further, that while no constitutional injunction could in and of itself isolate children from the shocks and perils of harsh family and neighbourhood B environments, the law could create conditions to protect children from abuse, and maximise opportunities for them to lead productive and happy lives. Section 28 required the law to make best efforts to avoid, where possible, any breakdown of family life or parental care that might threaten to put children at increased risk. Similarly, where rupture of the family became inevitable, the State was obliged to minimise the consequent C negative effect on children as far as it could. (Paragraph [20] at 246E - G.)

Held, further, that s 28(2) constituted an expansive guarantee that a child's best interests would be paramount in every matter concerning the child. It was to be noted that the very expansiveness of the paramountcy principle created the risk of appearing to promise everything in general, while actually delivering little in particular. However, it was precisely the contextual nature D and inherent flexibility of s 28 that were the source of its strength. A truly principled child-centred approach required a close and individualised examination of the precise real-life situation of the particular child involved. (Paragraphs [22] - [24] at 247C - 249A.)

Held, further, that it was difficult to establish an appropriate operational thrust for the paramountcy principle. The word 'paramount' was emphatic; coupled E with the far-reaching phrase 'in every matter concerning the child', and taken literally, it would cover virtually all laws and forms of public or private action, since very few measures would not have either a direct or an indirect impact on children. This could not mean that the direct or indirect impact of a measure or action on children must in all cases oust all other considerations. The paramountcy principle was not to be applied in a way F that obliterated other valuable and constitutionally protected interests. The 'best interests' injunction was capable of limitation and the fact that the best interests of the child were paramount did not mean that they were absolute. As with all other rights in the Bill of Rights, their operation had to take account of their relationship to other rights, which might require that their ambit be limited. (Paragraphs [25] and [26] at 249B - G.) G

Held, further, that focused and informed attention needed to be given to the interests of children at appropriate moments in the sentencing process. The objective was to ensure that the sentencing court was in a position adequately to balance all the varied interests involved, including those of the children placed at risk. The form of punishment imposed should be the one that was least damaging to the interests of the children, given the H legitimate range of choices available to the sentencing court. The purpose of emphasising the duty of the court to acknowledge the interests of the children was not to permit errant parents unreasonably to avoid punishment; rather, it was to protect innocent children from avoidable harm. Certain guidelines would promote uniformity of principle, consistency of treatment and individualisation of outcome. Firstly, a sentencing court I should determine whether an accused was a primary caregiver wherever there were indications that this might be so. A probation officer's report would not always be needed in this regard; the information could be obtained from the accused and from the prosecution. Secondly, the court should ascertain the effect on the children of a custodial sentence if such a sentence was being considered. Thirdly, if on the 'Zinn triad' approach J (which required the court to consider the crime, the offender and the

2008 (3) SA p235

interests of society) the appropriate sentence was clearly custodial and A the accused was a primary caregiver, the court must apply its mind to the question of whether it was necessary to take steps to ensure that the children would be adequately cared for while the caregiver was incarcerated. Fourthly, where the appropriate sentence was clearly non-custodial, it must be determined bearing in mind the interests of the children. Fifthly, if there was a range of appropriate...