South Africa: Constitutional Court

S v M (CCT 53/06) [2007] ZACC 18; 2008 (3) SA 232 (CC); 2007 (12) BCLR 1312 (CC); 2007 (2) SACR 539 (CC) (26 September 2007)

(i) She performs service to the benefit of the community for ten hours per week for three years, the form of such service and the mode of supervision to be determined by the Commissioner for Correctional Services; and

(ii) she undergoes counselling on a regular basis with such person or persons and at such times as is determined by the Commissioner for Correctional Services.

(d) The accused must repay to each of the persons or entities that she defrauded, as identified in the charges on which she was convicted, an amount equal to the value of goods she obtained. This must be done in the manner specified in a schedule to be determined by the Commissioner for Correctional Services on the basis of R4 000 bail money being immediately available and payment of the balance at a rate of no less than R1 500 per month.

Moseneke DCJ, Mokgoro J, Ngcobo J, O’Regan J, Skweyiya J, Van der Westhuizen J concur in the judgment of Sachs J.

MADALA J:

Introduction

78. I have had the benefit of reading the judgment of Sachs J. While I agree with him on certain aspects of the judgment, I am unable to support his approach particularly on his assessment of the evidence for the purpose of determining an appropriate sentence and the sentence he proposes. In the circumstances, I have decided to set out my views separately.

Background

79. This is an application for leave to appeal against the decision of Fourie J and Van Riet AJ in the Cape High Court on 14 September 2005.

80. The Centre for Child Law (the Centre) applied to be admitted as amicus curiae. A curator ad litem (the curator) was also appointed to represent the interests of the children. We are indeed indebted to the Centre and to the curator for the assistance rendered in this matter and for submitting heads of argument and presenting oral submissions.

81. In the interests of protecting the identity of the children concerned, this Court ordered that the applicant’s name be made anonymous and that henceforth she be referred to as “M”.

82. M is a 35 year old single mother of three minor boys aged approximately 16, 12 and 8 respectively. She lives with the children in a three bedroom house. She is presently on bail pending the outcome of her application for leave to appeal in this Court.

83. On 25 May 2003, after pleading guilty to several charges of fraud and theft in the Wynberg Regional Court (the Regional Court), the applicant was sentenced to a period of four years’ imprisonment. On 29 May 2003, her application for bail was also dismissed. The applicant approached the High Court for bail and on 27 July 2003 it was fixed at R4 000, by which time she had already served an effective period of three months’ imprisonment.

84. The applicant noted an appeal against the severity of the sentence on 22 March 2005 and the Regional Court’s sentence of four years’ imprisonment was altered to a sentence of four years in terms of section 276(1)(i) of the Criminal Procedure Act (CPA) 51 of 1977.¹ The applicant subsequently appealed and the High Court turned down her application for leave to appeal. The Court did however extend her bail whilst her application for leave to appeal to the Supreme Court of Appeal was pending. The Supreme Court of Appeal dismissed her application for leave to appeal. The applicant then approached this Court for leave to appeal against the sentence imposed by the High Court.

85. M has now approached this Court on the basis that the Regional Court did not take into account the paramountcy of the interests of the children before imposing a term of effective imprisonment against a primary caregiver. In the directions issued by the Chief Justice, the parties were called upon to address, among others, the following matters:

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

2. were these duties observed in this case; and

3. if it is held that those duties were not observed, what order should this Court make in this case, if any?

Issues

86. As I see the matter, the real issues that need to be considered in this case are:

1. The considerations, duties and approaches of sentencing courts in respect of the best interests of children;

2. to what extent a recidivist primary caregiver of minor children can avoid a custodial sentence; and

3. whether in this particular case this Court should interfere with the sentence imposed by the High Court on the applicant?

I provide a brief factual analysis before proceeding to answer the questions as articulated above.

Record of previous convictions

87. On 24 February 1996, M was convicted of one count of fraud and was sentenced to three years’ imprisonment, the whole of which was suspended for a period of five years on condition that she would not be convicted of fraud, theft, forgery, uttering or any attempt to commit any of such offences during the period of suspension. She was also ordered to pay compensation in the sum of R10 000.

88. While on suspension, she breached the conditions of the suspended sentence imposed on 24 February 1996. Both counts were taken as one for purposes of sentence. She was sentenced in terms of section 276(1)(h) of the CPA³ and a sentence of three years correctional supervision and 576 hours of community service was imposed. The convictions and sentences were later set aside. In June 1999, M was again arrested on a fraud charge and released on R4 000 bail in August 1999. Between 12 November 1999 and 13 February 2000, whilst on bail, M committed further fraud offences. In 2003, she was charged with eighty four counts of fraud and theft but was convicted in the Regional Court of having committed thirty eight counts of fraud and four counts of theft. She had pleaded guilty to thirty four counts of fraud and three counts of theft, but was also convicted of theft in respect of count 83 after entering a plea of not guilty. All counts were taken together for purposes of sentence. The total prejudice was R29 158, 69.

89. In May 2003, M was sentenced by the Regional Magistrate (the Magistrate) to four years’ direct imprisonment. The three year suspended sentence of 24 February 1996 was ordered to run concurrently with the four year term of imprisonment. On appeal to the High Court, the theft conviction in respect of count 83 was set aside thus reducing the total prejudice from R29 158, 69 to R19 158, 69. The Magistrate’s sentence was set aside and replaced with a correctional supervision sentence of four years imprisonment in terms of section 276(1)(i) of the CPA.⁴

90. M challenges the decision in the High Court on the ground that it had failed to give sufficient weight to the fact that she had children in need that depended on her and the impact that incarceration would have on them. The failure to take into account the best interests of the children, in her submission, resulted in the imposition of a custodial sentence rather than one of correctional supervision.

91. Before I consider the arguments advanced by M, it is appropriate to review the findings made by both the Regional Court and the High Court against the background of evidence on this issue and the submissions made by the parties in this case.

Magistrate’s findings

92. It is clear from the reading of the proceedings in the Regional Court that the Magistrate considered: (a) the applicant’s personal circumstances; (b) the interests of society and (c) the seriousness of the offence. The Magistrate sought to achieve a balance by weighing all the aforementioned factors during sentencing in accordance with the requirements in S v Zinn.⁵ The Magistrate took into account the fact that M was a repeat offender as well as her personal circumstances. The record shows that the Magistrate was alive to the fact that M was a “mother of minor children” and the impact incarceration would have on her children. These are apparent from the following exchange captured in the record:

“Prosecutor: How long did you spend in custody? — Five weeks. In total? — I was for five weeks and four days because I was four days in hospital. And who looked after your children in that time? — My mom. Is she staying in the same house you’re staying in? — No. Where is she staying? — With my sister. And she’s there and she looks after the sister’s children there? — That’s correct. So she can then, there is at least a place for your children to go? — No, at the time my sister took leave so that she could look after her own kids and mom came to stay with me, stayed at my place. Court: Is she still staying at your place? — No Your Worship, she comes on a weekend but she doesn’t stay at my place, she stays with my sister but at the time that I was arrested my sister took leave from work, so she looked after her kids and my mom came to stay in my house

Prosecutor: But they won’t be on the street, that’s what I’m saying? ― No, they won’t be on the street.

. . .

Prosecutor: It is so that you were aware of the suspended sentence, not so? — That’s correct. And yet despite that you on numerous occasions and you were convicted on 42 charges in this case which occurred over a period of time, you kept on committing further offences well knowing that this sentence was hanging over your head, not so? ― That’s correct. A similar offence to be specific, not so? ― That’s correct.

And that didn’t deter you. In fact when you were arrested on this case that didn’t deter you from committing further offences, is it not so? — On which case? In this case, even after you were arrested on this case and released on bail, you committed further offences? ― That’s correct.”

93. The Magistrate emphasised that M was not a first offender in the sentencing judgment. Of particular concern to the Magistrate was the fact that M continued to commit fraud while on bail and in full knowledge of her suspended sentence.

High Court’s findings

94. The High Court was of the opinion that in deciding the issue of sentencing, each case should be examined on its own facts. In deciding whether M was entitled to a suspended sentence, the High Court took into consideration that M committed the offences of fraud during the period of her suspended sentence. Moreover “even after she had been . . . released on bail, she continued committing the balance of the offences”. The High Court also took into account that many of the “offences were committed over a period of time while she had ample time to reflect and to desist from such criminal conduct”.

95. In deciding whether correctional supervision was an appropriate sentence, the High Court held that although M was a suitable candidate for a sentence of correctional supervision because she was a divorcee with three minor children, there were other considerations such as the interests of the community that needed to be balanced in determining the appropriate sentence. The Court held that although a sentence of imprisonment would no doubt cause M and her children great hardship, a sentence of correctional supervision was not appropriate in these circumstances. It said:

“[H]aving regard to the nature and extent of the offences of dishonesty committed by the appellant, as well as her previous conviction and the fact that she committed the present offences well knowing that she has a suspended sentence hanging over her head, the magistrate correctly concluded that to impose a sentence of correctional supervision in terms of section 276(1)(h) of the Criminal Procedure Act, and not a period of imprisonment, would over-emphasise the appellant’s personal circumstances at the expense of the interests of the community. I may add that had the appellant been a first offender, I probably would have inclined to the view that a sentence of correctional supervision in terms of section 276(1)(h) of the Criminal Procedure Act would suffice.”

In this Court

96. In this Court the applicant’s legal representative submitted that the Magistrate and the High Court had very little regard for the rights of the applicant’s three minor children and dealt very superficially, if at all, with their rights. He submitted that the failure to consider the interests of the minor children was a “glaring misdirection” as the interests of the children concerned had not been adequately addressed as contemplated in section 28(2) of the Constitution.

97. It was also further submitted that the potential period of imprisonment of eight months, even though it may be shorter than that imposed by the Magistrate, would still have a major impact on the lives of the three minor children. It was further contended that the negative aspects of this period of imprisonment (albeit a short period) would be as devastating as a period of four years’ direct imprisonment because any time that the applicant spends in prison would have adverse effects on her family and that it would infringe the children’s constitutional rights in terms of section 28(2).

98. The views of the amicus were that the Regional Court and the High Court paid scant attention to the fact that the applicant was a primary caregiver of three children. Moreover, no probation officer’s report was elicited by the High Court in this regard. The amicus submitted that the Magistrate therefore embarked on the process of sentencing with virtually no regard for the well-being of the children should the applicant be sent to prison. The amicus contended that both courts failed to consider the best interests of the children and that it would not be reasonable and justifiable to limit their rights in terms of section 36 of the Constitution to sentence a primary caregiver to imprisonment. The failure to pay proper consideration to the interests of the three minor children resulted in a material misdirection.

99. The respondents contended that although neither the Regional Court nor the High Court made an order regarding the minor children of the applicant, neither court erred in the consideration of a proper sentence.⁶

100. Given all the aforesaid submissions, it is now appropriate to consider whether the Regional Court and the High Court adequately considered the children’s interests during the sentencing proceedings.

101. The amicus⁷ and the curator⁸ give detailed information on the substantive duties of a court when sentencing a primary caregiver. Although the information is in no way conclusive, they provide factors which may be considered in determining whether the provisions of section 28(2) of the Constitution were complied with. These factors appear in the judgment of Sachs J and I am in general agreement with his findings in this regard. I now examine the sentence imposed on M in light of the information provided by the parties to this application. The question then remains whether the High Court and the Regional Court misdirected themselves when imposing punishment on the applicant.

102. A probation officer’s report was not submitted to the Regional Court before the imposition of the sentence, this failure clearly falls short of the factors recommended by the amicus and the curator. The two-line reasoning by the Magistrate is not an analysis in the true sense of the word and is indeed a derisory application of the constitutional requirements provided for by section 28(2).

103. In the High Court a correctional supervision report was available. However, the High Court merely referred to it cursorily when analysing the impact imprisonment would have on the minor children:

“As I have already mentioned, the appellant is a suitable candidate for a sentence of correctional supervision. She is a divorcee with three minor children and has a fixed address and a regular source of income through her cleaning business. A sentence of imprisonment will in no doubt cause her and her children great hardship. However, one has to take the interests of the community into account.” (Emphasis added.)

104. It is remarkable that a probation officer’s report was also not submitted in the High Court. Such a report should have been made available to the High Court before sentencing. Such failure, in my view, constitutes a material misdirection which warrants interference by this Court.

105. The precedents set in S v Kika⁹ and Howells v S¹⁰ clearly demonstrates the stark difference employed in the reasoning of the lower courts in this matter and that which is required in cases where the primary caregiver is to be sentenced. In Howells, Van Heerden AJ probes the polarised interests involved weighing them against the interests of the children and the interests articulated in Zinn. This was clearly demonstrated in the court order in Howells which dealt specifically with the rights of the children concerned and the steps taken by the court to mitigate those factors.¹¹

106. The failure to consider the interests of the applicant’s children in the Regional Court and in the High Court fell short of the constitutional requirements as envisaged in section 28(2) of the Constitution. That failure to employ a reasonable and comprehensive analysis may well stem from the high influx of cases in the lower courts and the short time-frames judicial officers have to contend with in those courts. Nevertheless, courts sentencing primary caregivers are obliged to apply a child-centred approach and not to merely treat children as a circumstance of an accused. Such an approach would undoubtedly meet the constitutional requirements necessitated by section 28(2) of the Constitution.

107. Apart from the detailed report by the curator and social worker, the Department of Social Development also filed a report. The latter report shows that many relatives of the children concerned indicated that they are prepared to take care of the children’s financial needs and to assist with their daily care. M herself informed the Department of Social Development that her relatives had looked after her children during the previous time she was in prison. A primary caregiver does not necessarily escape imprisonment because of the children. There must be other factors precipitating such an outcome. In a situation where the children will not suffer hardship, a primary caregiver may have to be incarcerated if there are aggravating factors justifying such an eventuality.¹² Whilst the best interests of the children may be paramount, they should not be the overriding consideration in determining whether or not a primary caregiver should be sent to prison.

108. In light of these reports as well as the recommended guidelines advanced by the amicus and the curator, I will now embark on a balancing exercise taking into account all the competing interests in light of section 28(2) of the Constitution.

(a) To what extent can a recidivist primary caregiver of minor children avoid a custodial sentence

109. The general objectives of sentencing are retribution, deterrence, prevention and rehabilitation. In assessing the most appropriate sentence a judicial officer should be guided by the guidelines proposed in the Zinn triad. However, the process does not stop there. In a case where a primary caregiver’s sentence is being considered, the sentencing officer must go beyond the Zinn triad requirements. It would be proper, in deserving cases, to take into account the impact of imprisonment on dependants. This, however, does not imply that the primary caregiver will always escape imprisonment so as to protect the rights and best interests of the minor children. There must be circumstances justifying an alternative before the sentencing officer may decide to reduce the otherwise appropriate sentence. Such circumstances should be considered cumulatively and an objective evaluation of all the relevant factors is required.

110. The factors to be considered include the ages and special needs of the minor children, the nature and character of the primary caregiver, the seriousness and prevalence of the offence committed and the degree of moral blameworthiness on the part of the accused. In a case where the primary caregiver is a first offender, has committed a relatively minor offence, has shown remorse and contrition and the children are of a tender age requiring special attention, the sentencing officer will be wary to send such a person to prison. Where, as is the situation with M, the primary caregiver is a recidivist who continues to commit crimes of a similar nature even whilst on bail and the children are relatively closer to their teens, it would be folly and a show of “maudlin sympathy”¹³ to impose a non-custodial sentence. In such circumstances the primary caregiver may not escape a custodial sentence.

111. In Hodder v The Queen¹⁴ Murray J held:

“Where serious offences are committed, it is inevitable that more severe punishment will be involved and that will be expected in almost every case to cause hardship to innocent persons associated with the offender and the commission of the offence, as victims or otherwise. It is right then that only in an exceptional case, quite out of the ordinary, should the hardship which a proper sentencing disposition will occasion to innocent third parties be allowed to substantially mitigate the court’s sentencing disposition. The court should not lose sight of the fact that the hardship occasioned by the sentencing process is, in truth, caused by the offender who commits the offences and visits upon himself or herself the punishment of the court. Even so, the court should, as it was put by Wells J in Wirth, be prepared to drawback in mercy where it would, in effect, be inhuman to refuse to do so.”

112. Whilst it must be borne in mind that the best interests of the child are of paramount importance,¹⁵ section 28(2) like other rights enshrined in the Bill of Rights is subject to limitations that are reasonable and justifiable in compliance with the provisions of section 36 of the Constitution.¹⁶ In my view, section 28(2) of the Constitution provides that a child’s best interests must prevail unless the infringement of those rights can be justified in terms of section 36 of the Constitution. In Howells, Van Heerden AJ approached the limitation of the child’s best interest by holding that although imprisoning a convicted criminal who is a primary caregiver would undoubtedly result in the children being taken into care, society’s interest in sentencing her to imprisonment outweighed the children’s interests.¹⁷ In this regard, rendering the child’s best interests paramount does not necessitate that other competing constitutional rights may be simply ignored or that a limitation of the child’s best interest is impermissible.¹⁸

(b) Whether in this particular case this Court should interfere with the sentence imposed by the High Court on the applicant

113. I am in general agreement with the reasoning of Sachs J that ordinarily, appeal courts should not interfere with sentences imposed by the lower courts unless a clear misdirection can be established. This was held in Malgas v S¹⁹ where Marais JA held that:

“A court exercising appellate jurisdiction cannot, in the absence of a material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial court. . . .However even in the absence of a material misdirection, an appellate court may yet be justified in interfering with the sentence imposed by the trial court. It may do so when the disparity between the sentence of the trial court and the sentence which the appellate court would have imposed had it been the trial court is so marked that it can properly

be described as ‘shocking’, ‘startling’ or ‘disturbingly inappropriate’.”

Courts have reinforced this principle in many judgments.²⁰ However, given the protracted history of this case, the interests of the applicant’s children and the fact that this Court has been furnished with the necessary information, this Court is mandated to review the sentence of the High Court in order to ascertain whether any misdirection has occurred. I now consider the appropriateness or otherwise of the sentence imposed. In doing so, I have regard to the factors stated hereunder.

(i) Previous convictions

114. An accused’s previous convictions are recognised in both local and foreign jurisdictions as being a determinative factor in the sentencing process.²¹ In the case of R v Hamilton,²² the Ontario Superior Court of Justice considered the fact that the accused had no previous convictions as a highly relevant factor in imposing a conditional sentence. In my view, M has not learnt from her previous brushes with the law.

(ii) Remorse

115. The level of remorse of an accused has been recognised as one of the many factors to be considered by a sentencing court. The court in Hamilton looked at the manner in which the accused demonstrated real remorse when deciding upon a sentence.²³ Notably this can be compared to the case before us where the applicant has adopted a supercilious attitude without any sign of remorse whatsoever and continued to commit further offences whilst on bail with the full knowledge of the impact that such callous action would have on her children. It is remarkable that even when she was in prison, the applicant continued to plan further acts of fraud. The applicant’s lack of remorse in this case arises from her recidivism.

(iii) Interests of society

116. The interests of society play a significant role as one of underlying principles in the Zinn triad. The interests of society in this case involve a broad interest in maintaining societal confidence in the criminal justice system.²⁴ The crime statistics report prepared by the Department of Safety and Security reveal that commercial crime in South Africa has increased by 5, 5 per cent from 2001 to 2007.²⁵ This increase is unacceptable and it reveals the importance of reinforcing the need for strict standards of punishment and encouraging methods of deterrence in our country. It is incumbent upon courts to foster conditions that allow for the police and the judiciary to function effectively and to have the ability to reprimand and penalise those who show a disregard for the very laws that are designed to protect both our country’s economy and the private interests of individuals.²⁶

117. This Court should be wary of setting a precedent that creates a perception that courts will give primary caregivers a sentence that is disproportionate to what they deserve and which encourages them to use the interests of children as a tool in the judicial process. Higher courts have a responsibility not to send wrong messages to judicial officers. As stated earlier there can be no doubt that the children’s interests must be considered, but this enquiry becomes tainted once those interests are elevated at the expense of other important relevant considerations such as those I have alluded to, including the seriousness and gravity of the offence.

(iv) Seriousness of the offence

118. It can admit of no doubt that fraud of any nature and theft is a serious offence within our criminal justice system.²⁷ Van Heerden AJ held in Howells:

“In a number of recent cases, courts have taken judicial notice of the disturbing increase in the incidence of the type of white-collar crime committed by the appellant, namely fraud and theft committed by people in positions of trust, and have taken this into account in imposing sentence. . . .”²⁸

119. As a court of final instance in all constitutional matters, it is imperative that this Court does not set a precedent which creates the impression that primary caregivers must be given a slap on the back of their wrists in spite of the seriousness of the offences they have committed. In The State v Govender,²⁹ an unreported decision of the Natal Provincial Division delivered on 23 November 1976, Didcott J held:

“A sentence for fraud would serve a very limited deterrent purpose on other members of the public. If people got the idea that they could commit fraud and that the worst that would happen to them if they were caught was that they would have to repay the money which they have unlawfully misappropriated. If that idea set abroad, fraud would be a worthwhile gamble in the minds of many people because the worst that would happen to them if they were caught would be that they would have to repay the money that they unlawfully obtained.”

(v) Personal circumstances

120. In the present case we are concerned with an individual who is self-employed, with a steady income from her own stable businesses. The applicant claims to have a regular source of income from her cleaning business. Furthermore, she has a partner who can, in my view, continue to operate the business even in her absence. It should also not be overlooked that the applicant is a repeat offender who committed further offences during the currency of her suspended sentence. She carefully planned the execution of the offences and it is reasonable to conclude that she was motivated by greed rather than need as she was gainfully employed at the time the offences were perpetrated.³⁰ It must furthermore be borne in mind in this case that we are dealing not with juvenile offenders who are about to be sentenced, but with the mother.

(c) The duties and approaches of sentencing courts in respect of the best interests of children

121. Sachs J has responded well to the first question regarding the duties of a sentencing court when the person facing sentence is a primary caregiver of minor children. I am in agreement with his philosophical analysis of these duties namely the importance of maintaining the integrity of family care on one hand, and “the duty on the State to punish criminal misconduct” on the other.³¹ His analysis is a confirmation of the fact that constitutional rights are to be scrupulously observed. However, courts have long understood that the everyday practical problems of satisfying these competing rights are not easily resolved.³²

122. I accept without reservation that the best interests of the child need to be considered by every judicial officer when considering the sentence to be imposed on a primary caregiver. The rationale for such an approach has been set out in length by Sachs J in his judgment and requires no repetition. What remains is to say that the duties of the courts are to be imbued with a child centred approach and the courts must as a rule, judiciously consider a child’s interests. My point of departure, however, is that the specific case before us involves highly competitive interests and that despite having taken into account the best interests of the children, I nevertheless arrive at the same outcome as the High Court. I am fortified in my view by the report of the Department of Social Development,³³ from which it is clear that the children are in fact not at risk of severe prejudice if their mother is incarcerated. The time of incarceration is likely to be eight months, a drastically reduced sentence and considering the repeated fraudulent conduct of the applicant, one cannot completely sacrifice the interests of society which is served by the criminal justice system for the interests of the children.³⁴

123. The High Court has effectively minimised the impact on the children as far as possible as set out in the preceding paragraph by sentencing the applicant under section 276(1)(i) of the CPA which requires M to do a shortened term of imprisonment. However, if she exhibits signs of rehabilitation, she may effectively only serve a term of eight months imprisonment. In my view, the approach adopted by the High Court reveals a great degree of mercy as the judge had due regard to the accused’s circumstances, thereby giving her yet another chance to modify her behaviour knowing that failure to do so would result in a term of four years’ imprisonment which would detrimentally impact on her children.

Conclusion

124. Although a custodial sentence may seem harsh, the fact is that the applicant was shown mercy by the High Courts on a prior occasion but misused the opportunity of proving how repentant she was instead; she would not walk on a straight and narrow path for the benefit of the children during the period of suspension. She continued as if nothing had ever happened.

125. I have had the benefit of many reports, recommendations and extensive oral argument and have endeavoured to balance all the competing interests. However, I find no compelling justifications why the applicant should not serve her custodial sentence.

126. For all the reasons articulated in this judgment, I am not persuaded that the sentence imposed by the High Court should be interfered with in this matter. In the circumstances I would grant leave to appeal and dismiss the appeal.

Navsa AJ and Nkabinde J concur in the judgment of Madala J.

For the Applicant: Mr W Booth instructed by William Booth Inc.

For the Respondent: Advocate PJ Coetzee and Advocate SM Galloway instructed by The State Attorney, Pretoria.

For the Amicus Curiae: Advocate A Skelton instructed by the Centre for Child Law.

Curator ad Litem: Advocate R Paschke.

* At the commencement of the hearing on 22 February 2007 this Court issued an order that the citation of the case name in this matter shall be “M v The State” in order to protect the identity of the applicant’s three minor children.

1 The order reads as follows:

“All the counts are taken as one for purposes of sentence and you are sentenced to: FOUR (4) YEARS’ IMPRISONMENT. In terms of Section 280 of the Criminal Procedure Act the Court orders that if the suspended sentence imposed on the 24^th of February 1996 is put into operation, if that is put into operation, that two years of the four years that is imposed today will run concurrently with that sentence.”

2 Section 276(1) provides:

“(1) Subject to the provisions of this Act and any other law and of the common law, the following sentences may be passed upon a person convicted of an offence, namely—

. . .

(i) imprisonment from which such a person may be placed under correctional supervision in the discretion of the Commissioner or a parole board.”

3 South African Law Commission Report on a New Sentencing Framework Project 82 (November, 2000) at para 1.1. The report explains at para 1.2 that individual decisions are announced to a critical public who analyse them against a variety of expectations. They not only ask whether the sentences express public condemnation of the crime adequately and protect the public against future crimes by the reform and incapacitation of offenders and by the deterrence of both the individual offender and other potential offenders, but also whether the sentences are just in the sense that similar sentences are being imposed for offences that are of equal seriousness or heinousness. In addition there is a growing expectation that the sentence must be restorative, in the sense both of compensating the individual who suffered as the result of a crime and of repairing the social fabric that criminal conduct damages. All these concerns are inevitably particularly prominent amongst victims of crime, who have a special interest in the offences that they themselves have suffered.

Since January 2003, what was previously known as the South African Law Commission (the SALC) has been called the South African Law Reform Commission. Because the publications by that Commission referred to in this judgment were brought out before its name was changed, I use the former designation.

4 In S v Zinn 1969 (2) SA 537 (A) at 540G-H the Appellate Division formulated the triadic sentencing formula as follows: “What has to be considered is the triad consisting of the crime, the offender and the interests of society.” The Zinn triad has subsequently become the mantra when pronouncing sentence, but courts have been criticised for invoking it perfunctorily as an invocation. Nevertheless, the triad still retains its status as sentencing north star (see for example S v Malgas 2001 (2) SA 1222 (SCA) at 1232A where the triad once again received the Supreme Court of Appeal’s imprimatur).

5 Malgas above n 4 at 1225H quoting Hogarth Sentencing as a Human Process (University of Toronto Press, Toronto 1971) at 5.

6 Thus, placing over-emphasis on the nature of the crime at the expense of the personal circumstances of the offender was regarded in Zinn (above n 4 at 540F/G-G) as a misdirection, rendering the sentence susceptible to being set aside by a court of appeal. This Court has also held in S v Dodo [2001] ZACC 16; 2001 (2) SA 382 (CC); 2001 (5) BCLR 423 (CC); 2001 (1) SACR 594 (CC) at para 38 that if carried to disproportionate extremes, it would amount to disregard of the interests of the convicted person since it “. . . is to ignore, if not to deny, that which lies at the very heart of human dignity”.

It has been suggested that the triad is incomplete because it leaves the victim out of the equation (S v Isaacs 2002 (1) SACR 176 (C) at 178B/C-C). This issue is not before us, and need not be further entertained. Linked to this is the need to reconfigure the sentencing process in appropriate cases in keeping with the principles of restorative justice (SALC Report on a New Sentencing Framework above n 3 at 24-5), a matter which is considered below at paras 64 and 71.

7 S v Banda and Others 1991 (2) SA 352 (B) at 355A-B/C.

8 Director of Public Prosecutions, KwaZulu-Natal v P 2006 (3) SA 515 (SCA); [2006] 1 All SA 446 (SCA); 2006 (1) SACR 243 (SCA) at para 13. P, a twelve year old girl had paid two men to suffocate and then slit the throat of her grandmother, with whom she lived, after she had drugged her. For this act she had furnished the murderers with articles from the deceased’s house and offered herself sexually to them. The trial Court had imposed a correctional supervision order, and the State had appealed to the Supreme Court of Appeal. After emphasising the significance of the United Nations Convention on the Right of the Child (the CRC) and section 28 of the Constitution, the Supreme Court of Appeal partially upheld the appeal, concluding that correctional supervision on its own was not severe enough. It held that a sentence of seven years’ imprisonment, entirely suspended on condition of P’s compliance with a rigorous regime of correctional supervision, was more appropriate. In P it was held at para 19 that the Constitution and the international instruments did not forbid incarceration of children in certain circumstances, but merely required that the “‘child be detained only for the shortest period of time’” and that the child be “‘kept separately from detained persons over the age of 18 years’.” The Supreme Court of Appeal noted that it was not inconceivable that some of the courts may be confronted with cases which required detention.

9 Id at para 13.

10 The best interests of the child principle was articulated as long ago as 1948 by the Appellate Division in Fletcher v Fletcher 1948 (1) SA 130 (A), and has since found application in numerous judgments. Section 7(1) of the Children’s Act 38 of 2005, parts of which entered into force on 1 July 2007 and replaces the Child Care Act 74 of 1983 and Children’s Act 33 of 1960, sets out a lengthy list of factors for courts to consider when determining a child’s best interests under the Act and under the Constitution. Such factors include, but are not limited to, the nature of the personal relationship between the child and the parents; the child’s physical and emotional security; the need for a child to be brought up within a stable family; and the relevant characteristics of the child. See also Barrett and Burman “Deciding the best interests of the child: an international perspective on custody decision-making” (2001) 118 SALJ 556 at 560. Compare Bennett “The best interests of the child in an African context” (1999) 20 Obiter 145 at 150-1 stating that protecting the interests of the family was indirectly protecting the interests of children, who like other individuals were not thought of as rights-bearers in the customary context.

11 See for instance Brandt v S [2005] 2 All SA 1 (SCA) at paras 15-6.

12 Jooste v Botha 2000 (2) SA 199 (T) at 210C-D/E. That case turned in part on whether, in the interests of a child, the courts could compel a father to show love and care to his child (hence the reference to horizontal application). The Court held that there is not a legally enforceable obligation upon parents to love and care for their children. This is a difficult issue on which this Court need not express an opinion.

13 De Reuck v Director of Public Prosecutions, Witwatersrand Local Division, and Others 2004 (1) SA 406 (CC)[2003] ZACC 19; ; 2003 (12) BCLR 1333 (CC); 2003 (2) SACR 445 (CC) at paras 54-5.

14 Sonderup v Tondelli and Another 2001 (1) SA 1171 (CC) also reported as LS v AT and Another [2000] ZACC 26; 2001 (2) BCLR 152 (CC) at para 29.

15 Minister of Welfare and Population Development v Fitzpatrick and Others [2000] ZACC 6; 2000 (3) SA 422 (CC); 2000 (7) BCLR 713 (CC) at para 17.

16 See below para 26.

17 Sloth-Nielsen “Chicken soup or chainsaws: some implications of the constitutionalisation of children’s rights in South Africa” (1996) Acta Juridica 6 at 25. The change is illustrated by alterations made to the Child Care Act. As Sloth-Nielsen observes, before interim amendments were brought about by the Child Care Amendment Act 96 of 1996, the principal Child Care Act was not child-centred, but focused on parents’ unfitness or inability to care for their child. The best interests of the child were not expressly a paramount consideration for decisions regarding children in terms of the Child Care Act. Children living on the street, children with disabilities, and other significant groups of vulnerable children in especially difficult circumstances in South African society were accordingly largely ignored in the statutory framework before the new constitutional order came into being (Sloth-Nielsen “The Child’s Right to Social Services, the Right to Social Security, and Primary Prevention of Child Abuse: Some Conclusions in the Aftermath of Grootboom” (2001) 17 SAJHR 210 at 211).

18 The CRC was ratified by South Africa on 16 July 1995.

19 See Mthiyane JA in P above n 8 at para 15.

20 Per Ponnan AJA in Brandt above n 11 at para 17. In P above n 8 at paras 19-20 the Supreme Court of Appeal further pointed out that the overarching thesis of the international instruments and the Constitution was that child offenders should not be deprived of their freedom except as a measure of last resort and then only for the shortest possible period of time, and adds at para 14 even then the sentence must be individualised so as to prepare the child offender for reintegration into society upon his or her release from prison. It added at para 16 that the principles guiding a sentencing officer in arriving at a suitable sentence for a juvenile offender are the principles of proportionality and the best interests of the child.

21 SALC The Review of the Child Care Act (18 April 1998) Issue Paper 13 Project 110 at para 2.1.

22 Article 25(2) of the Universal Declaration of Human Rights states that “[m]otherhood and childhood are entitled to special care and assistance . . . ”.

23 In Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC); 2000 (11) BCLR 1169 (CC) at paras 77-8 Yacoob J pointed out that the fact that section 28(1)(b) contemplated that a child had the right to parental or family care in the first place, and the right to alternative appropriate care only where that was lacking, did not mean that the State incurred no obligation towards children who are being cared for by parents or members of family. He stated that the State must provide the legal and administrative infrastructure necessary to ensure that children are accorded the protection contemplated in section 28. Normally that obligation would be fulfilled by enacting legislation and implementing enforcement mechanisms for the maintenance of children, their protection from maltreatment, abuse, neglect or degradation, and the prevention of other forms of abuse of children mentioned in section 28.

24 Section 28(1) of the Constitution provides:

“Every child has the right—

(a) to a name and a nationality from birth;

(b) to family care or parental care, or to appropriate alternative care when removed from the family environment;

(c) to basic nutrition, shelter, basic health care services and social services;

(d) to be protected from maltreatment, neglect, abuse or degradation;

(e) to be protected from exploitative labour practices;

(f) not to be required or permitted to perform work or provide services that—

(i) are inappropriate for a person of that child’s age; or

(ii) place at risk the child’s well-being, education, physical or mental health or spiritual, moral or social development;

(g) not to be detained except as a measure of last resort, in which case, in addition to the rights a child enjoys under section 12 and 35, the child may be detained only for the shortest appropriate period of time, and has the right to be—

(i) kept separately from detained persons over the age of 18 years; and

(ii) treated in a manner, and kept in conditions, that take account of the child’s age;

(h) to have a legal practitioner assigned to the child by the state, and at state expense, in civil proceedings affecting the child, if substantial injustice would otherwise result; and

(i) not to be used directly in armed conflict, and to be protected in times of armed conflict.”

25 Above n 15 at para 17.

26 Above n 14 at para 29.

27 See, for example, Van Bueren The International Law on the Rights of the Child (Martinus Nijhoff, The Hague 1998) 46-51; Clark “A ‘Golden Thread’? Some Aspects of the Application of the Standard of the Best Interest of the Child in South African Family Law” (2000) 1 Stell LR 3 at 15; Reece “The Paramountcy Principle: Consensus or Construct?” (1996) 49 Current Legal Problems 267 at 268; Heaton “Some General Remarks on the Concept ‘Best Interests of the Child’” (1990) 53 THRHR 95 at 95.

28 Van Heerden et al Boberg’s Law of Persons and the Family 2 ed (Juta & Co Ltd, Kenwyn 1999) at 502-3.

29 Above n 15 at para 18.

30 Id at fn 11 quoting from Van Bueren The International Law on the Rights of the Child (Martinus Nijhoff Publishers, Dordrecht 1995) at 47.

31 It is notably stronger than the phrase “primary consideration” referred to in international instruments. Article 3 of the Convention on the Rights of the Child provides:

“In all action concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

Article 4 of the African Charter on the Rights and Welfare of the Child provides:

“In all actions concerning the child undertaken by any person or authority the best interests of the child shall be the primary consideration.”

32 Above n 15 at para 20.

33 Above n 13.

34 Id at para 55.

35 Above n 13 at para 36.

36 Id at paras 33 and 35.

37 See Sanderson v Attorney-General, Eastern Cape 1998 (2) SA 38 (CC); 1997 (12) BCLR 1675 (CC) at para 35 where this Court held in relation to systemic delays in the criminal justice system that

“there must come a time when systemic causes can no longer be regarded as exculpatory. The Bill of Rights is not a set of (aspirational) directive principles of State policy — it is intended that the State should make whatever arrangements are necessary to avoid rights violations.”

In S v Jaipal [2005] ZACC 1; 2005 (4) SA 581 (CC); 2005 (5) BCLR 423 (CC); 2005 (1) SACR 215 (CC) at paras 55-6 this Court stated:

“For the State to respect, protect, promote and fulfil the rights in the Bill of Rights, resources are required. The same applies to the State’s obligation to assist and protect the courts to ensure their independence, impartiality, dignity, accessibility and effectiveness. The right to a fair trial requires considerable resources in order to provide for buildings with court rooms, offices and libraries, recording facilities and security measures and for adequately trained and salaried judicial officers, prosecutors, interpreters and administrative staff.

. . . Furthermore, all those concerned with and involved in the administration of justice — including administrative officials, judges, magistrates, assessors and prosecutors — must purposefully take all reasonable steps to ensure maximum compliance with constitutional obligations, even under difficult circumstances.” (Footnotes omitted.)

38 It will be noted that these are the four principles said to underlie the CRC, see above para 17.

39 Ministry for Welfare and Population Development White Paper for Social Welfare: Principles, Guidelines, Recommendations, Proposed Policies and Programmes for Developmental Social Welfare in South Africa (August 1997) ch 8 s 1 at para 15.

40 A study conducted by the Centre for the Study of Violence and Reconciliation in the three female prisons in Gauteng found that 37% of children of imprisoned mothers are cared for by grandparents, 28% by other family members and 22% are placed in alternative care by the Department of Social Development. Only 13% of children with mothers in prison are cared for by their fathers (see Haffejee et al “Minority Report: The imprisonment of women and girls in Gauteng” (2006) Centre for the Study of Violence and Reconciliation, Research Brief 4, February 3). According to the annual report of the Inspecting Judge of Prisons, women account for only 2% of the South African prison population (Annual Report by the Inspecting Judge of Prisons for the period 1 April 2005 to 31 March 2006). The South African Human Rights Commission has recently reported that 84% of imprisoned women are mothers (South African Human Rights Commission The impact of imprisonment on women and children: Are we acting in children’s best interest? SAHRC Briefing to Correctional Services Portfolio Committee, 25 August 2006). Thus, given that only a small percentage of the prison population is made up of women, the effects of requiring investigation prior to sentence would not be unduly onerous for our already over-burdened courts. At the same time the process must be gender-neutral, so that the children of those men who are primary caregivers should also receive the protection of the Constitution.

41 S v Howells 1999 (1) SACR 675 (C); [1999] 2 All SA 233 (C) affirmed on appeal by the Supreme Court of Appeal in Howells v S [2000] JOL 6577 (SCA).

42 Id at 681e/f-g.

43 Id at 681g-h/i.

44 The order included the following:

“The Registrar of this Court is requested immediately to approach the Department of Welfare and Population Development with the following request:

3.1 That the Department of Welfare and Population Development investigate the circumstances of appellant’s three minor children without delay and take all appropriate steps to ensure that

3.1.1 the children are properly cared for in all respects during the appellant’s period of imprisonment;

3.1.2 the children remain in contact with the appellant during her period of imprisonment and see her on a frequent and regular basis, insofar as prison regulations permit; and

3.1.3 everything reasonably possible is done to ensure the reunification of the appellant with her children on appellant’s release from prison and the promotion of the interests of the family unit thereafter.” (Id at 683c-f.)

45 Discussed above at paras 10-1.

46 See also Brandt above n 11 at paras 15-6 (sentencing a minor and applying constitutional and international human rights principles).

47 The record at 356 of the proceedings before the trial Court reads as follows:

“Prosecutor: How long did you spend in custody? — Five weeks. In total? — I was for five weeks and four days because I was four days in hospital. And who looked after your children in that time? — My mom. Is she staying in the same house you are staying in? — No. Where is she staying? — With my sister. And she’s there and she looks after the sister’s children there? — That’s correct. So she can then, there is at least a place for your children to go? — No, at the time my sister took leave so that she could look after her own kids and mom came to stay with me, stayed at my place.

Court: Is she still staying at your place? — No, Your Worship, she comes on a weekend but she doesn’t stay at my place, she stays with my sister but at the time I was arrested my sister took leave from work, so she looked after her kids and my mom came to stay in my house.

Prosecutor: But they won’t be on the street, that’s what I’m saying? — No they won’t be on the street. And steps can be taken for the fathers to try and ensure maintenance? — They’re not working. Yes but steps can be taken with them, not so? — I presume so.

Court: I think what he’s also saying to you is, if the Court would send you to jail the children will be accommodated either by your mother or your family or the fathers of the children? — They’re not in a position to accommodate, Your Worship.

Prosecutor: Meaning what? — My eldest son’s father stays in a room and my two kids’ father stays all over the show. I’m never able to get a physical address on him. Okay, but your family or your mother would be able to look after them . . . (intervention) — Financially my mother won’t be able to look after them. But they will have a house to go to? — Yes, Your Worship.”

48 As had been done in Howells above n 41, discussed above at paras 43-4.

49 Record at 363.

50 The curator submitted a social work report prepared by Ms Cawood, as well as his own report, and the Department of Social Development submitted reports prepared by a team of social workers.

51 At 3 line 21 to 4 line 9 of the judgment.

52 S v R 1993 (1) SA 476 (A) at 488G; 1993 (1) SACR 209 (A) at 221h.

53 S v Williams and Others [1995] ZACC 6; 1995 (3) SA 632 (CC); 1995 (7) BCLR 861 (CC) at paras 67-8 (per Langa J).

54 In the SALC Report on a New Sentencing Framework above n 3 at para 2.31 it was recognised that this is a sentencing option that needs to be developed vigorously. The SALC submits that increased emphasis should be placed on reparation for victims of crime in any new sentencing arrangement. Reparation has gained great acceptance in England, subject to section 104 of the Criminal Justice Act 1988 which requires a court to consider making a compensation order in every case involving death, injury, loss or damage.

55 Id at para 1.4.

56 This order is available in terms of section 52(1)(g) of the Correctional Services Act 111 of 1998.

57 SALC Report above n 3 at para 3.3.30.

58 Id at para 1.8.c:

“[I]maginative restitutive alternatives could provide solutions more satisfactory to all parties, while at the same time saving valuable prison resources for those offenders deserving harsher punishment.”

Correctional supervision is provided for by the CPA. Section 276(1)(h) of the Act provides that “[s]ubject to the provisions of this Act and any other law and of the common law, the following sentences may be passed upon a person convicted of an offence, namely . . . correctional supervision”. This sentence option was introduced into the CPA by the Correctional Services and Supervision Matters Amendment Act 122 of 1991. The Act also introduced section 84 into what was then the Prisons Act 8 of 1959 (now the Correctional Services Act). Section 84 provided that:

“Every probationer shall be subject to such monitoring, community service, house arrest, placement in employment, performance of service, payment of compensation to the victim and rehabilitation or other programmes as may be determined by the court, the Commissioner or prescribed by or under this Act, and to any other such form of treatment, control or supervision, including supervision by a probation officer, as the Commissioner may determine after consultation with the social welfare authority concerned in order to realise the objects of correctional supervision.”

The greater part of the Prisons Act was repealed by section 137 of the Correctional Services Act but section 84F is still operational and governs the limitation on correctional supervision. Correctional supervision is defined in section 1 of the CPA as

“. . . a community based sentence to which a person is subject in accordance with Chapter V and VI of the Correctional Services Act, 1998, and the regulations made under that Act if—

. . .

(b) it has been imposed on him under section 276(1)(h) . . .”

59 Above n 52 at 220H. The essential penal elements of correctional supervision were identified in Roman v Williams NO 1998 (1) SA 270 (C); 1997 (9) BCLR 1267 (C); 1997 (2) SACR 754 (C) at 282I-283A as

“house arrest during specific hours each day, rehabilitational, educational or psychotherapeutic programmes, regular community service in various forms, abstinence from criminal or improper conduct and from use or abuse of alcohol and drugs . . . [as well as] constant monitoring.”

Section 276A(1) of the CPA further provides:

“Punishment shall only be imposed under section 276(1)(h)—

(a) after a report of a probation officer or a correctional official has been placed before the court; and

(b) for a fixed period not exceeding three years.”

60 Section 50(1) of the Correctional Services Act. Chapter VI of this Act (which commenced on 31 July 2004) deals extensively with correctional supervision (or “community corrections”, in the wording of the chapter).

61 Section 50(2) of the Correctional Services Act.

64 SALC Report above n 3 at para 1.37. In S v Lebuku 2006 JOL 17622 (T) at 13-5 Webster J refers to the 2003/2004 Annual Report of the Judicial Inspectorate of Prisons in which Justice Fagan recommends at para 16.2 the use of non-custodial sentences to help reduce the overcrowding in our prisons. He also provides a helpful discussion encouraging judges to actively explore all available sentencing options and to choose the sentence best suited to the crime. See also S v Siebert 1998 (1) SACR 554 (SCA) at 559c-d.

65 For a discussion of restorative justice see the minority judgments of Mokgoro J and Sachs J in Dikoko v Mokhatla 2006 (6) SA 235 (CC); 2007 (1) BCLR 1 (CC) especially at paras 68 and 114, respectively.

66 SALC Report above n 3 at para 3.3.34.

67 See too Pinnock What Kind of Justice? University of Cape Town, Institute of Criminology Occasional Paper Series 4-95 (1995), http://web.uct.ac.za/depts/sjrp/publicat/whatknd.htm, accessed on 16 August 2007; Maepa (ed) Beyond Retribution: Prospects for Restorative Justice in South Africa Institute for Security Studies Monograph No 111 (February 2005), http://www.iss.co.za/pubs/Monographs/No111/Chap2.htm at ch 2 where Batley points out that although there are a number of definitions of restorative justice, they all contain the following three principles: (1) crime is seen as something that causes injuries to victims, offenders and communities and it is in the spirit of ubuntu that the criminal justice process should seek the healing of breaches, (2) the redressing of imbalances and the restoration of broken relationships; and (3) not only government, but victims, offenders and their communities should be actively involved in the criminal justice process at the earliest point and to the maximum extent possible; and in promoting justice, the government is responsible for preserving order and the community is responsible for establishing peace.

68 S v E 1992 (2) SACR 625 (A) at 633a-b.

69 S v R above n 53 at 488C-D. See also S v Williams above n 53 at para 67; S v Schutte above n 63 at 349c-i quoting with approval the unreported judgment of Conradie J in The State v Margaret Gladys Harding SS61/92, 23 September 1992, unreported. In S v Ingram 1995 (1) SACR 1 (SCA) at 9e-f it was held that coupled with the correct conditions, correctional supervision could, in appropriate cases, even be suitable for serious offenders.

70 S v E above n 69 at 633a-b.

71 Margaret Gladys Harding above n 69 at 1749 of the record of that case.

72 Section 52(1) of the Correctional Services Act entitles a court when ordering correctional supervision to impose any of the following stipulations to the sentence regime:

(a) Placement under house detention;

(b) imposition of community service;

(c) an order to seek employment;

(d) an order to take up and remain in employment;

(e) an order to pay compensation or damages to victims;

(f) an order to take part in treatment, development and support programmes;

(g) an order to participate in mediation between victim and offender or in family group conferencing;

(h) an order to contribute financially towards the cost of the community corrections to which he or she has been subjected;

(i) a restriction to one or more magisterial districts;

(j) an order to live at a fixed address;

(k) an order to refrain from using or abusing alcohol or drugs;

(l) an order to refrain from committing a criminal offence;

(m) an order to refrain from visiting a particular place;

(n) an order to refrain from making contact with a particular person or persons;

(o) an order to refrain from threatening a particular person or persons by word or action; and

(p) subjecting the offender to monitoring.

73 The SALC in its report above n 3 at para 3.3.35 is calling for a more flexible process for imposing sentences. It is not always feasible to obtain comprehensive pre-sentencing reports, particularly in rural areas. They propose that the court should have a discretion to dispense with some of the requirements. In addition, reports should be capable of being provided for by a wider group of competent people. But see the discussion in Schutte above n 63 at 351b-c.

74 S v R above n 53 at 487E-F.

75 Appellate courts have been reluctant to impose conditions for correctional supervision and have generally referred such cases back to lower courts to work out the conditions. In S v R above n 52 at 492A-B, despite the existence of a probation report the Court deemed it unwise to compose a sentence itself. The Court of first instance was considered the most appropriate forum. See also S v Sibuyi 1993 (1) SACR 235 (A) at 251e-f and Koopman v S [2005]  1 All SA 539 (SCA) at para 63.

76 S v Govender 1995 (1) SACR 492 (N) at 497c-d.

77 Id at 497e-g.

78 Section 282 of the CPA provides for antedating of a sentence of imprisonment to a specific date not earlier than the date on which the sentence of imprisonment was imposed.

79 For example, she serves on the governing body of the school of the youngest two children, she takes the children to school and fetches them in the afternoon and takes them to extra-mural activities (from about 13:00 to 15:00 every weekday) and supervises their homework in the evenings.

80 She receives only an amount of R250 per month from the father of the eldest son as contribution to his maintenance.

81 It yields an income of R9 500 per month. Her catering business, which brings in an amount ranging from R1 000 to R3 000 per month, on the other hand, would continue to be managed by her business partner.

82 Indeed, her previous spell of imprisonment had led to the demise of the enterprises she carried on at that time.

83 The report of the curator and Ms Cawood concluded that all alternative care scenarios presented to the Court are undesirable in light of what is contemplated in section 28 of the Constitution. In particular non-family care has been described as most unsuitable. It has been established that these alternative care scenarios may result in dividing the children at an age and time where they need one another most. To remove them from their home and familiar environment is likely to cause them enormous physical and psychological upheaval. This would also produce major disruptions in their school routines and there may inevitably be a need to change schools. It may also mean a huge turn-around in their comfortable and disciplined lifestyle.

84 It is understood that the Commissioner may delegate this and other tasks referred to in this order to an appropriate official.

85 See for example S v Scheepers 2006 (1) SACR 72 (SCA); S v Flanagan 1995 (1) SACR 13 (SCA); S v Van der Westhuizen 1994 (1) SACR 191 (O); S v R above n 52.

86 Her agreement under section 50(2) of the Correctional Services Act may be assumed from the information placed before us by her counsel.

1 Section 276 provides:

“(1) Subject to the provisions of this Act and any other law and of the common law, the following sentences may be passed upon a person convicted of an offence, namely—

. . .

(i) imprisonment from which such a person may be placed under correctional supervision in his discretion by the Commissioner.”

2 Section 28(2) provides:

“A child’s best interests are of paramount importance in every matter concerning the child.”

3 Section 276 provides:

“(1) Subject to the provisions of this Act and any other law and of the common law, the following sentences may be passed upon a person convicted of an offence, namely—

. . .

(h) correctional supervision”.

4 See above n 1.

5 1969 (2) SA 537 (A) at 540G-H where it was held that judicial officers must take into consideration “the triad consisting of the crime, the offender and the interests of society.”

6 The High Court had the benefit of a correctional report as well as the testimony of the applicant and after all sentencing options were considered, it still found that given the circumstances of the case, direct imprisonment was the only suitable sentence.

7 The amicus made the following submissions in this regard:

“(a) Ask questions to elicit whether the offender is a primary care-giver;

(b) If imprisonment is being considered as a sentence for a primary care-giver the court must have sufficient information;

(c) This triggers the need for a pre-sentence report by a probation officer which should be called for by the court;

(d) The pre-sentence report must fully consider the possible effects on the child or children that will be caused by imprisonment and consider a range of alternatives;

(e) Once the report is before the court, the court must consider if the rights of the children in terms of s28(2) and 28(1)(b) will be infringed by the imprisonment of a primary care-giver;

(f) If the rights will be infringed, the court must decide if it is reasonable and justifiable to limit the rights;

(g) If the court decides that it is reasonable and justifiable to limit the child’s rights by sentencing the primary caregiver to imprisonment, the court must satisfy itself that there are adequate arrangements in place for the child, and where necessary must ensure such arrangements through the granting of additional orders relating to the opening of children’s court inquiries and other matters.”

8 The curator made the following submissions:

“(a) The sentencing court must consider the child’s best interest independently of other sentence considerations.

(b) Sufficient weight must be given to a consideration of the impact of the sentence on the minor children and the best interests of the minor children must be accorded ‘paramount importance’.

(c) An appeal court must not defer to the trial court or regard the matter as falling within the latter’s discretion where the trial court has either not considered the impact of the sentence on the minor children or has attached insufficient weight to such consideration.”

9 1998 (2) SACR 428 (W) at 430a-f.

10 [1999] 2 All SA 233 (C); 1999 (1) SACR 675 (C).

11 Id at 241c-g.

12 See Howells above n 10 at 240f-h where Van Heerden AJ held that on the facts in that case although there was a real risk, that should the appellant be imprisoned, her children would have to be taken into care, the nature and the magnitude of the appellant’s offence and the interests of society outweighed the interests of the appellant and her children. She stated that:

“[T]his is obviously highly regrettable and makes this Court reluctant to condemn appellant to imprisonment. But it is undoubtedly true that ‘detection, apprehension and punishment in the way of imprisonment are prospects which a person embarking on this sort of crime must always foresee’.” (Reference omitted.)

13 S v Rabie 1975 (4) SA 855 (A) at 861C-D.

14 (1995) 15 WAR 264 at 287 as quoted in S v The Queen 2003 WL 23002572 (WASC), [2003] WASCA 309.

15 This right creates an independent right that goes beyond the scope of the rights enumerated in section 28(1) of the Constitution. See Minister of Welfare and Population Development v Fitzpatrick and Others [2000] ZACC 6; 2000 (3) SA 422 (CC); 2000 (7) BCLR 713 (CC) at paras 17-18; Laerskool Middelburg en ’n Ander v Departementshoof, Mpumalanga Departement van Onderwys, en Andere 2003 (4) SA 160 (T) at 176G-J; Fraser v Naude and Others 1999 (1) SA 1 (CC); 1998 (11) BCLR 1357 (CC) at para 9; Belo v Commissioner of Child Welfare, Johannesburg, and Others: Belo v Chapelle and Another [2002] 3 All SA 286 (W) at para 19; Du Toit and Another v Minister of Welfare and Population Development and Others [2002] ZACC 20; 2003 (2) SA 198 (CC); 2002 (10) BCLR 1006 (CC) at paras 20-22; Magewu v Zozo and Others 2004 (4) SA 578 (C) at para 18.

16 Section 36 (1) reads:

“The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including—

(a) the nature of the right;

(b) the importance of the purpose of the limitation;

(c) the nature and extent of the limitation;

(d) the relation between the limitation and its purpose; and

(e) less restrictive means to achieve the purpose.”

17 See above n 10 and 12.

18 See Sonderup v Tondelli and Another 2001 (1) SA 1171 (CC) also reported as LS v AT and Another [2000] ZACC 26; 2001 (2) BCLR 152 (CC) at paras 29-37; Petersen v Maintenance Officer and Others 2004 (2) SA 56 (C); 2004 (2) BCLR 205 (C) at para 20. See also the obiter statement in De Reuck v Director of Public Prosecutions, Witwatersrand Local Division, and Others [2003] ZACC 19; 2004 (1) SA 406 (CC); 2003 (12) BCLR 1333 (CC); 2003 (2) SACR 445 (CC) at para 55.

19 [2001] 3 All SA 220 (A) at 229b-e.

20 See S v Fazzie and Others 1964 (4) SA 673 (A) at 684A-B cited in S v Pillay 1977 (4) SA 531 (A) at 535A:

“It is trite law that the determination of a sentence in a criminal matter ‘is pre-eminently a matter for the discretion of the trial court’. In the exercise of this function the trial Judge has a wide discretion in deciding which factors – I here refer to matters of fact and not of law – he should in his opinion allow to influence him in determining the measure of the punishment.”

See also S v Anderson 1964 (3) SA 494 (A) at 495F-H where the court held that:

“A court that interferes with a sentence imposed by a lower court, itself exercises a discretion when it imposes a new sentence and there cannot, therefore, be a ready-made test in the strict sense of the word. Nor is it advisable to attempt to lay down a general rule as to when the Court’s discretion to alter a sentence will be exercised.”

21 Section 271(4) of the CPA requires the courts to take proved previous convictions into account.

22 (2003) 172 CCC (3d) 114.

23 Id.

24 See above n 22 at 159 where Hill J quoted from R v Wust (2000) 143 CCC (3d) 129 (SCC) at 139:

“A legal system that condones excessively harsh, or for that matter, lenient sentences, will eventually lose the support of many members of the community.”

25 http://www.saps.gov.za/statistics/reports/crimestats/2007/categories.htm

26 In Burchell and Milton Principles of Criminal Law 3 ed (Juta, Landsdowne 2005) at 833 the following remarks are made:

“The effect of admitting both proprietary and non-proprietary prejudice as a basis for charges of fraud is that the crime, in South African law, protects not only the individual’s proprietary interests, but also the State’s interest in the integrity of the administration’s public affairs.” (Footnote omitted.)

27 See S v Sadler 2000 (1) SACR 331 (SCA) at 335g-j.

28 See Howells n 10 above at 239c-d where the following cases are quoted: S v Blank 1995 (1) SACR 62 (A) at 79d-e; S v Brand 1998 (1) SASV 296 (C) at 306f-g; S v Erasmus 1998 (2) SACR 466 (SEC) at 472c-d.

29 Case No AR869/1976, judgment delivered on 23 November 1976.

30 S v Sinden 1995 (2) SACR 704 (A) at 709a-b where Van den Heever JA held that “the applicant persistently and deliberately betrayed the trust placed in her and did so from greed, not need.”

31 See above judgment of Sachs J at paras 38 and 39 respectively.

32 In S v Banda and Others 1991 (2) SA 352 (B) at 355A-C, Friedman J identifies these practical difficulties:

“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 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.”

33 See above para 30.

34 See above n 12.