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

• Jurisdiction: South Africa

S v M (Centre for Child Law as Amicus Curiae)
2007 (2) SACR 539 (CC) [*]

2007 (2) SACR p539

Citation	2007 (2) SACR 539 (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	P J Coetzee (with S M Galloway) for the respondent.; A Skelton for the Amicus Curiae, instructed by the Centre for Child Law.; R Paschke as curator ad litem.

Flynote : Sleutelwoorde

Fundamental rights — Child's right to family or parental care — Best interests of child paramount in every matter affecting child — Section 28 of Constitution of the Republic of South Africa, 1996 — Duties of Court when sentencing primary caregiver of minor children — Comprehensive C and emphatic language used in s 28 indicating that law enforcement must always be child-sensitive — Right of child to be a child and to enjoy special care — Unusually comprehensive and emancipatory character of s 28 presupposing that sins of parents should not be visited on their children — Children's needs and rights tending to receive scant consideration when primary caregiver sent to prison — Paramountcy principle, read with right D to family care, requiring that interests of children who stood to be affected receive due consideration — This not meaning that all other considerations be overridden, but rather that appropriate weight be given in each case to interests of children concerned.

Fundamental rights — Best interests of child paramount in every matter E affecting child — Section 28(2) of Constitution of the Republic of South Africa, 1996 — Paramountcy principle — Appropriate operational thrust for paramountcy principle — Principle not to be applied in way that obliterated other valuable and constitutionally protected interests — 'Best interests' injunction capable of limitation and fact that best interests of F 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

2007 (2) SACR p540

A their relationship to other rights, which might require that their ambit be limited.

Sentence — Imposition of — Factors to be taken into account — Where convicted person primary caregiver of minor children — Focused and informed attention to be given to interests of children at appropriate moments in B sentencing process — Form of punishment imposed should be one least damaging to interests of children, given available choices — Certain guidelines promoting uniformity of principle, consistency of treatment and individualisation of outcome — Firstly, sentencing court to determine whether accused was primary caregiver wherever there were indications that this might be so — Secondly, court to ascertain effect on children of C custodial sentence if such sentence being considered — Thirdly, if appropriate sentence clearly custodial and accused primary caregiver, court to apply its mind to question of whether it was necessary to take steps to ensure that children would be adequately cared for while caregiver incarcerated — Fourthly, where appropriate sentence clearly D non-custodial, it must be determined bearing in mind interests of children — Fifthly, if range of appropriate sentences available, court to use principle that best interests of child paramount as important guide in deciding which sentence to impose.

Sentence — Imposition of — Factors to be taken into account — Where convicted person primary caregiver of minor children — Trial court imposing E sentence of direct imprisonment — High Court converting sentence to imprisonment in terms of s 276(1)(i) of Criminal Procedure Act 51 of 1977 — Magistrate's enquiry as to what would happen to applicant's children if she were sent to prison inadequate — Quality of whatever alternative care was available not investigated — Likewise, potential impact that splitting children up and moving them would have on their F schooling — Failure to call for social worker's report — Accordingly, magistrate having passed sentence without giving sufficient independent and informed attention, as required by s 28(2) read with s 28(1)(b), to impact on children of sending applicant to prison — This failure carrying through to High Court — Both sentencing courts misdirecting themselves by not G paying sufficient attention to constitutional requirements.

Sentence — Correctional supervision — Purposes of — Legislature seeking to distinguish between those offenders who ought to be removed from society and those who, while deserving punishment, not needing to be so removed — Correctional supervision comprising elements of rehabilitation, H reparation and restorative justice — If used appropriately, serving to protect society without destructive impact of incarceration on convicted criminal's innocent family members — Offender rehabilitated within community, leaving work and domestic routines intact and without negative influences of prison — Not to be categorised as lenient alternative to direct imprisonment — Its conditions able to be fashioned so as to meet specific circumstances of each offender's case.

Sentence — Imposition of — Factors to be taken into account — Where convicted person primary caregiver of minor children — Fraud I — Accused a repeat offender — Offences committed over period of time and during suspension period of previous sentence — Offences deliberate and calculated, and driven by greed instead of need — Imprisonment emotionally, J developmentally, physically, materially, educationally and socially disadvantageous

2007 (2) SACR p541

to accused's children — Viability of accused's business threatened A if she went to jail, leaving her unable to maintain home and children — Accused's offer to repay persons she had defrauded appearing genuine and realistic — Persons not to be excluded from correctional supervision simply because repeat offenders — Applicant, her children, the community and the victims who would be repaid from her earnings, standing to benefit more from her being placed under correctional B supervision than from her being sent to prison.

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 her record of previous convictions for fraud: she had received a fine and a C 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 imprisonment under s 276(1)(i) of the Criminal Procedure Act 51 of 1977, D 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 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 E were of a sentencing court in the light of s 28(2) of the Constitution of the Republic of South Africa, 1996, 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. F

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 language used in the section indicated that, just as law enforcement must always be gender-sensitive, so it must always be child-sensitive; statutes G 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 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 H 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 dignity; each child was to be constitutionally imagined as an individual with a distinctive personality, and not treated as a mere extension of his or her parents. The unusually comprehensive and emancipatory character of s 28 I presupposed that the sins and traumas of fathers and mothers should not be visited on their children. (Paragraphs [15] - [18] at 552c - 553e.)

Held, further, that while no constitutional injunction could in and of itself isolate children from the shocks and perils of harsh family and neighbourhood environments, the law could create conditions to protect children from abuse, and maximise opportunities for them to lead productive and happy J

2007 (2) SACR p542

A lives. Section 28 required the law to make best efforts to avoid, where possible, any breakdown of family life or parental care that might...