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)

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[2007] ZACC 18
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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)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT
53/06
[2007] ZACC
18
M
*
Applicant
versus
THE STATE Respondent
CENTRE FOR CHILD
LAW Amicus Curiae
Heard on : 22 February
2007
Decided on : 26
September 2007
JUDGMENT
SACHS J:
When
considering whether to impose imprisonment on the primary caregiver
of young children, did the courts below pay sufficient
attention to
the constitutional provision that in all matters concerning
children, the children’s interests shall be paramount?
Background
M is a 35 year
old single mother of three boys aged 16, 12 and 8. In 1996 she was
convicted of fraud and sentenced to a fine coupled
with a term of
imprisonment that was suspended for five years. In 1999 she was
charged again with fraud, and while out on bail
after having been in
prison for a short period, committed further fraud. In 2002 she was
convicted in the Wynberg Regional Court
on 38 counts of fraud and
four counts of theft. The Court took all the counts together for
purposes of sentence. The total amount
involved came to R29 158,
69. The Court asked for a correctional supervision report. The
report indicated that M would be an
appropriate candidate for a
correctional supervision order. Despite strong pleas from her
attorney that she not be sent to prison
the Court sentenced her to
four years’ direct imprisonment.
1
The Regional
Magistrate refused to grant bail pending an appeal, but after M had
been in jail for three months, the Cape High Court
granted leave to
appeal and allowed her to be released on bail. The High Court later
held that she had been wrongly convicted
on a count of fraud
involving an amount of R10 000, and, since this reduced the
quantum of the remaining counts to R19 158,
69, converted her
sentence to one of imprisonment under section 276(1)(i)
2
of the Criminal Procedure Act (the CPA). The effect of this change
was that after she had served eight months imprisonment, the
Commissioner for Correctional Services (the Commissioner) could
authorise her release under correctional supervision. The Court
denied her leave to appeal against this sentence to the Supreme
Court of Appeal.
M then
petitioned the Supreme Court of Appeal for leave to appeal against
the order of imprisonment. The Supreme Court of Appeal
turned down
her request. It did not give reasons. She next applied to this
Court for leave to appeal against the refusal of the
Supreme Court
of Appeal to hear her oral argument, as well as against the sentence
imposed by the High Court.
This Court
refused the first part of her application, namely, that she be given
leave to appeal on the ground that the Supreme Court
of Appeal had
given no reasons for refusing to hear oral argument. It did,
however, enrol her application for leave to appeal
against the
sentence. The directions by the Chief Justice required the parties
to deal with the following issues only:
I. What are the duties of the sentencing court in the light of
section 28(2) of the Constitution and any relevant statutory
provisions
when the person being sentenced is the primary caregiver
of minor children?
II. Whether these duties were observed in this case.
III. If it was to hold that these duties were not observed, what
order should this Court make, if any?
The
Registrar was directed to serve a copy of these directions on the
Minister for Social Development and the Minister for Justice
and
Constitutional Development, who were given the opportunity to file
affidavits if they wished.
Advocate
Paschke was appointed curator ad litem. He produced a comprehensive
report supported by a report compiled by a social
worker, Ms Cawood.
The Centre for Child Law of the University of Pretoria was admitted
as amicus curiae and Ms Skelton made wide-ranging
written and oral
submissions on the constitutional, statutory and social context in
which the matter fell to be decided.
The applicant,
the curator and the amicus all contended that the effect of section
28 of the Constitution was to require sentencing
courts, as a matter
of general practice, to give specific and independent consideration
to the impact that a custodial sentence
in respect of a primary
caregiver could have on minor children. On the facts of this case
they argued that due consideration of
the interests of M’s
children required that an appropriately stringent correctional
supervision order should be imposed in place
of a custodial
sentence.
The National
Director of Public Prosecution replied that current sentencing
procedures in the courts already took account of the
interests of
children, and that on the facts of the case the decision of the High
Court should not be interfered with. Counsel
for the Department of
Social Development and the Department of Justice and Constitutional
Development adopted a similar position,
submitting a comprehensive
report from a team of social workers to assist the Court.
We are grateful
to all the above persons for the careful and methodical manner in
which they undertook their tasks. In matters
concerning children it
is important that courts be furnished with the best quality of
information that can reasonably be obtained
in the circumstances.
The extensive information and thoughtful arguments advanced by all
the above-mentioned protagonists in this
matter fully meet this
standard. Aided by this most helpful material I respond in sequence
to the questions as formulated in the
directions.
I. What are the
duties of the sentencing court in the light of section 28(2) of the
Constitution and any relevant statutory provisions
when the person
being sentenced is the primary caregiver of minor children?
(a) The current
approach to sentencing
Sentencing is
innately controversial.
3
However, all the parties to this matter agreed that the classic
Zinn
4
triad is the paradigm from which to proceed when embarking on “the
lonely and onerous task”
5
of passing sentence. According to the triad the nature of the
crime, the personal circumstances of the criminal and the interests
of the community are the relevant factors determinative of an
appropriate sentence.
6
In
Banda
Friedman J explained that:
“
The
elements of the triad contain an equilibrium and a tension. A court
should, when determining sentence, strive to accomplish and
arrive at
a judicious counterbalance between these elements in order to ensure
that one element is not unduly accentuated at the
expense of and to
the exclusion of the others. This is not merely a formula, nor a
judicial incantation, the mere stating whereof
satisfies the
requirements. What is necessary is that the Court shall consider,
and try to balance evenly, the nature and circumstances
of the
offence, the characteristics of the offender and his circumstances
and the impact of the crime on the community, its welfare
and
concern.”
7
And, as Mthiyane JA
pointed out in
P
,
8
in the assessment of an appropriate sentence the court is also
required to have regard to the main purposes of punishment, namely,
its deterrent, preventive, reformative and retributive aspects. To
this the quality of mercy, as distinct from mere sympathy for
the
offender, had to be added. Finally, he observed, it was necessary to
take account of the fact that the traditional aims of punishment
had
been transformed by the Constitution.
9
It is this last observation that lies at the centre of this case.
P
confirmed the need for a re-appraisal of the juvenile justice system
in the light of the Constitution. The issue was the extent
to which
the interests of a child should weigh where the child herself was
the offender. The present case calls upon us to consider
the
situation where it is not a juvenile offender facing sentencing but
the primary caregiver of a child. In these circumstances,
does the
new constitutional order require a fresh approach to sentencing?
More particularly, does section 28 of the Constitution
add an extra
element to the responsibilities of a sentencing court over and above
those imposed by the
Zinn
triad, and if so, how should these
responsibilities be fulfilled?
(b) The
significance of section 28(2) of the Constitution
Section 28(2)
of the Constitution provides that “[a] child’s best interests
are of paramount importance in every matter concerning
the child.”
South African courts have long had experience in applying the “best
interests” principle in matters such as
custody or maintenance.
10
In our new constitutional order, however, the scope of the best
interests principle has been greatly enlarged.
11
Indeed, it is
the very sweeping character of the provision that has led questions
to be asked about its normative efficacy. For
example, in
Jooste
Van Dijkhorst J stated:
“
[The] wide formulation [of
section 28(2)] is ostensibly so all-embracing that the interests of
the child would override all other
legitimate interests of parents,
siblings and third parties. It would prevent conscription or
imprisonment or transfer or dismissal
by the employer of the parent
where that is not in the child’s interest. That can clearly not
have been intended. In my view,
this provision is intended as a
general guideline and not as a rule of law of horizontal application.
That is left to the positive
law and any amendments it may
undergo.”
12
While section
28 undoubtedly serves as a general guideline to the courts, its
normative force does not stop there. On the contrary,
as this Court
has held in
De Reuck
,
13
Sonderup
14
and
Fitzpatrick
,
15
section 28(2), read with section 28(1), establishes a set of
children’s rights that courts are obliged to enforce. I deal with
these cases later.
16
At this stage I merely point out that the question is not whether
section 28 creates enforceable legal rules, which it clearly
does,
but what reasonable limits can be imposed on their application.
The ambit of
the provisions is undoubtedly wide. The comprehensive and emphatic
language of section 28 indicates that just as law
enforcement must
always be gender-sensitive, so must it always be child-sensitive;
that statutes must be interpreted and the common
law developed in a
manner which favours protecting and advancing the interests of
children; and that courts must function in a
manner which at all
times shows due respect for children’s rights. As Sloth-Nielsen
pointed out:
“
[T]he inclusion of a general
standard (‘the best interest of a child’) for the protection of
children’s rights in the Constitution
can become a benchmark for
review of all proceedings in which decisions are taken regarding
children. Courts and administrative
authorities will be
constitutionally bound to give consideration to the effect their
decisions will have on children’s lives.”
17
Secondly,
section 28 must be seen as responding in an expansive way to our
international obligations as a State party to the United
Nations
Convention on the Rights of the Child (the CRC).
18
Section 28 has its origins in the international instruments of the
United Nations.
19
Thus, since its introduction the CRC has become the international
standard against which to measure legislation and policies,
and has
established a new structure, modelled on children’s rights, within
which to position traditional theories on juvenile
justice.
20
I do not suggest that a children’s rights model for juvenile
justice, where children themselves are directly in trouble with
the
law, should automatically be transposed to sentencing in cases where
children are only indirectly affected because their primary
caregivers are about to be sentenced. What should be carried over,
however, is a parallel change in mindset, one that takes
appropriately
equivalent account of the new constitutional vision.
Regard
accordingly has to be paid to the import of the principles of the
CRC as they inform the provisions of section 28 in relation
to the
sentencing of a primary caregiver. The four great principles of the
CRC which have become international currency, and as
such guide all
policy in South Africa in relation to children, are said to be
survival, development, protection and participation.
21
What unites these principles, and lies at the heart of section 28,
I believe, is the right of a child to be a child and enjoy
special
care.
22
Every child has
his or her own dignity. If a child is to be constitutionally
imagined as an individual with a distinctive personality,
and not
merely as a miniature adult waiting to reach full size, he or she
cannot be treated as a mere extension of his or her parents,
umbilically destined to sink or swim with them. The unusually
comprehensive and emancipatory character of section 28 presupposes
that in our new dispensation the sins and traumas of fathers and
mothers should not be visited on their children.
Individually
and collectively all children have the right to express themselves
as independent social beings, to have their own
laughter as well as
sorrow, to play, imagine and explore in their own way, to themselves
get to understand their bodies, minds
and emotions, and above all to
learn as they grow how they should conduct themselves and make
choices in the wide social and moral
world of adulthood. And
foundational to the enjoyment of the right to childhood is the
promotion of the right as far as possible
to live in a secure and
nurturing environment free from violence, fear, want and avoidable
trauma.
No
constitutional injunction can in and of itself isolate children from
the shocks and perils of harsh family and neighbourhood
environments. What the law can do is create conditions to protect
children from abuse
23
and maximise opportunities for them to lead productive and happy
lives. Thus, even if the State cannot itself repair disrupted
family life, it can create positive conditions for repair to take
place, and diligently seek wherever possible to avoid conduct
of its
agencies which may have the effect of placing children in peril. It
follows that section 28 requires the law to make best
efforts to
avoid, where possible, any breakdown of family life or parental care
that may threaten to put children at increased
risk. Similarly, in
situations where rupture of the family becomes inevitable, the State
is obliged to minimise the consequent
negative effect on children as
far as it can.
These
considerations reflect in a global way rights, protection and
entitlements that are specifically identified and accorded
to
children by section 28. They are extensive and unmistakable.
Section 28(1) provides for a list of enforceable substantive
rights
that go well beyond anything catered for by the common law and
statute in the pre-democratic era.
24
For present purposes, it is necessary to highlight section 28(1)(b)
which states that “[e]very child has the right to family
care or
parental care, or to appropriate alternative care when removed from
the family environment”.
Furthermore, as
Goldstone J pointed out in
Fitzpatrick
, section 28(1) is not
exhaustive of children’s rights:
“
Section 28(2) requires that a
child’s best interests have paramount importance in every matter
concerning the child. The plain
meaning of the words clearly
indicates that the reach of s 28(2) cannot be limited to the rights
enumerated in s 28(1) and 28(2)
must be interpreted to extend beyond
those provisions. It creates a right that is independent of those
specified in s 28(1). This
interpretation is consistent with the
manner in which s 28(2) was applied by this Court in
Fraser v
Naude and Others.
”
25
(Footnote omitted.)
It will be noted
that he spoke about a right, and not just a guiding principle. It
was with this in mind that this Court in
Sonderup
referred to
section 28(2) as “an expansive guarantee” that a child’s best
interests will be paramount in every matter concerning
the child.
26
Once more one
notes that the very expansiveness of the paramountcy principle
creates the risk of appearing to promise everything
in general while
actually delivering little in particular. Thus, the concept of “the
best interests” has been attacked as
inherently indeterminate,
providing little guidance to those given the task of applying it.
27
Van Heerden in
Boberg
states that:
“
[T]he
South African Constitution, as also the 1989 United Nations
Convention on The Rights of the Child and the 1979 United Nations
Convention on the Elimination of All Forms of Discrimination Against
Women, enshrine the ‘best interests of the child’ standard
as
‘paramount’ or ‘primary’ consideration in all matters
concerning children. It has, however, been argued that the ‘best
interests’ standard is problematic in that,
inter
alia
: (i) it is ‘indeterminate’; (ii) members of the various
professions dealing with matters concerning children (such as the
legal,
social work and mental health professions) have quite
different perspectives on the concept ‘best interests of the
child’; and
(iii) the way in which the ‘best interests’
criterion is interpreted and applied by different countries (and
indeed, by different
courts and other decision-makers within the same
country) is influenced to a large extent by the historical background
to, and the
cultural, social, political and economic conditions of
the country concerned, as also by the value system of the relevant
decision-maker.”
28
(Footnotes omitted.)
These problems
cannot be denied. Yet this Court has recognised that it is
precisely the contextual nature and inherent flexibility
of section
28 that constitutes the source of its strength. Thus, in
Fitzpatrick
this Court held that the best interests principle
has “never been given exhaustive content”, but that “[i]t is
necessary that
the standard should be flexible as individual
circumstances will determine which factors secure the best interests
of a particular
child.”
29
Furthermore “‘(t)he list of factors competing for the core of
best interests [of the child] is almost endless and will depend
on
each particular factual situation’.”
30
Viewed in this light, indeterminacy of outcome is not a weakness.
A truly principled child-centred approach requires a close
and
individualised examination of the precise real-life situation of the
particular child involved. To apply a pre-determined
formula for
the sake of certainty, irrespective of the circumstances, would in
fact be contrary to the best interests of the child
concerned.
A more
difficult problem is to establish an appropriate operational thrust
for the paramountcy principle. The word “paramount”
is
emphatic.
31
Coupled with the far-reaching phrase “in every matter concerning
the child”, and taken literally, it would cover virtually
all laws
and all forms of public action, since very few measures would not
have a direct or indirect impact on children, and thereby
concern
them. Similarly, a vast range of private actions will have some
consequences for children. This cannot mean that the
direct or
indirect impact of a measure or action on children must in all cases
oust or override all other considerations. If the
paramountcy
principle is spread too thin it risks being transformed from an
effective instrument of child protection into an empty
rhetorical
phrase of weak application, thereby defeating rather than promoting
the objective of section 28(2). The problem, then,
is how to apply
the paramountcy principle in a meaningful way without unduly
obliterating other valuable and constitutionally-protected
interests.
This Court, far
from holding that section 28 acts as an overbearing and unrealistic
trump of other rights, has declared that the
best interests
injunction is capable of limitation. In
Fitzpatrick
this
Court found that no persuasive justifications under section 36 of
the Constitution were put forward to support the ban on
foreign
persons adopting South African-born children, which was contrary to
the best interests of the child.
32
In
De Reuck
,
33
in the context of deciding whether the definition and
criminalisation of child pornography was constitutional, this Court
determined
that section 28(2) cannot be said to assume dominance
over other constitutional rights. It emphasised that
“
. . . constitutional rights
are mutually interrelated and interdependent and form a single
constitutional value system. This Court
has held that s 28(2), like
the other rights enshrined in the Bill of Rights, is subject to
limitations that are reasonable and justifiable
in compliance with s
36.”
34
(Footnote omitted.)
Similarly, in
Sonderup
this Court stated that the international obligation
to return a child to the country of his or her residence for
determination of
custody would constitute a justifiable limitation
under section 36 of section 28 rights.
35
This limitation on section 28(2) was counterbalanced by the duty of
courts to weigh the consequences of the court’s decision on
children.
36
Accordingly, the fact that the best interests of the child are
paramount does not mean that they are absolute. Like all rights
in
the Bill of Rights their operation has to take account of their
relationship to other rights, which might require that their ambit
be
limited.
Given the
significance of section 28, what then is the proper approach to
sentencing where the person convicted is the primary caregiver?
(c) The proper
approach of a sentencing court where the convicted person is the
primary caregiver of minor children
The directions
in this matter referred to sentencing of primary caregivers, not to
the wider class of breadwinners. Simply put,
a primary caregiver is
the person with whom the child lives and who performs everyday tasks
like ensuring that the child is fed
and looked after and that the
child attends school regularly. This is consonant with the
expressly protected right of a child
to parental care under section
28(1)(b). We are accordingly not called upon in this judgment to
deal with delineating the duties
of the sentencing court where the
breadwinner is not also the primary caregiver. Suffice it to say
that, as in all matters concerning
children, everything will depend
on the facts of the particular case in which the issue might arise.
Counsel for the
State submitted that sentencing practices in our courts already took
account of the impact on children through applying
the
Zinn
triad, that is, through looking at the crime, the criminal and the
community. She contended that sentencing courts as a matter
of
routine consider the personal circumstances of the criminal,
including their parental obligations, and weigh them against the
gravity of the crime and its impact on the community. Hence, it was
said, no change in present sentencing practice is called for,
and
the sentence imposed by the High Court should not be interfered
with.
The tart reply
of the amicus was that a child of a primary caregiver is not a
“circumstance”, but an individual whose interests
needed to be
considered independently. The weight to be given to those interests
and the manner in which they were to be protected
would depend on
the particular circumstances. But, she contended, these interests
were not to be swallowed up by and subsumed
into the consideration
of the culpability and circumstances of the primary caregiver.
The curator and
the amicus also pointed out that South Africa’s obligations under
international law underscored the special requirement
to protect the
child’s interests as far as possible. Article 30(1) of the
African Charter on the Rights and Welfare of the Child,
expressly
dealing with “Children of Imprisoned Mothers”, provides that:
“
States Parties to the present
Charter shall undertake to provide special treatment of expectant
mothers and to mothers of infants
and young children who have been
accused or found guilty of infringing the penal law and shall in
particular:
(a)
ensure that a
non-custodial sentence will always be first considered when
sentencing such mothers
;
(b)
establish and promote
measures alternative to institutional confinement for the treatment
of such mothers
;
(c) establish special
alternative institutions for holding such mothers;
(d) ensure that a mother shall
not be imprisoned with her child;
(e) ensure that a death sentence
shall not be imposed on such mothers;
(f)
the essential aim of the
penitentiary system will be the reformation, the integration of the
mother to the family and social rehabilitation
.” (Emphasis
added.)
The curator
emphasised that section 28(2) of the Constitution should be read
with section 28(1)(b) which provides that every child
has a right to
family or parental care, or appropriate alternative care when
removed from the family environment. Taken together,
he contended,
these provisions impose four responsibilities on a sentencing court
when a custodial sentence for a primary caregiver
is in issue. They
are:
To establish
whether there will be an impact on a child.
To consider
independently the child’s best interests.
To attach
appropriate weight to the child’s best interests.
To ensure that
the child will be taken care of if the primary caregiver is sent to
prison.
These appear to
me to be practical modes of ensuring that section 28(2) read with
section 28(1)(b), is applied in a sensible way.
They take
appropriate account of the pressures under which the courts work,
without allowing systemic problems to snuff out their
constitutional
responsibilities.
37
Focused and informed attention needs to be given to the interests
of children at appropriate moments in the sentencing process.
The
objective is to ensure that the sentencing court is in a position
adequately to balance all the varied interests involved,
including
those of the children placed at risk. This should become a standard
preoccupation of all sentencing courts. To the
extent that the
current practice of sentencing courts may fall short in this
respect, proper regard for constitutional requirements
necessitates
a degree of change in judicial mindset. Specific and well-informed
attention will always have to be given to ensuring
that the form of
punishment imposed is the one that is least damaging to the
interests of the children, given the legitimate range
of choices in
the circumstances available to the sentencing court.
In this respect
it is important to be mindful that the issue is not whether parents
should be allowed to use their children as a
pretext for escaping
the otherwise just consequences of their own misconduct. This would
be a mischaracterisation of the interests
at stake. Indeed, one of
the purposes of section 28(1)(b) is to ensure that parents serve as
the most immediate moral exemplars
for their offspring. Their
responsibility is not just to be with their children and look after
their daily needs. It is certainly
not simply to secure money to
buy the accoutrements of the consumer society, such as cellphones
and expensive shoes. It is to
show their children how to look
problems in the eye. It is to provide them with guidance on how to
deal with setbacks and make
difficult decisions. Children have a
need and a right to learn from their primary caregivers that
individuals make moral choices
for which they can be held
accountable.
Thus, it is not
the sentencing of the primary caregiver in and of itself that
threatens to violate the interests of the children.
It is the
imposition of the sentence without paying appropriate attention to
the need to have special regard for the children’s
interests that
threatens to do so. The purpose of emphasising the duty of the
sentencing court to acknowledge the interests of
the children, then,
is not to permit errant parents unreasonably to avoid appropriate
punishment. Rather, it is to protect the
innocent children as much
as is reasonably possible in the circumstances from avoidable harm.
There is no
formula that can guarantee right results. However, the guidelines
that follow would, I believe, promote uniformity
of principle,
consistency of treatment and individualisation of outcome.
A sentencing court should find out whether a convicted person is a
primary caregiver whenever there are indications that this
might be
so.
A probation officer’s report is not needed to determine this in
each case. The convicted person can be asked for the information
and if the presiding officer has reason to doubt the answer, he or
she can ask the convicted person to lead evidence to establish
the
fact. The prosecution should also contribute what information it
can; its normal adversarial posture should be relaxed when
the
interests of children are involved. The court should also
ascertain the effect on the children of a custodial sentence if
such a sentence is being considered.
If on the
Zinn
triad approach the appropriate sentence is
clearly custodial and the convicted person is a primary caregiver,
the court must
apply its mind to whether it is necessary to take
steps to ensure that the children will be adequately cared for
while the caregiver
is incarcerated.
If the appropriate sentence is clearly non-custodial, the court
must determine the appropriate sentence, bearing in mind the
interests of the children.
Finally, if there is a range of appropriate sentences on the
Zinn
approach, then the court must use the paramountcy principle
concerning the interests of the child as an important guide in

deciding which sentence to impose.
(d) Competing
rights
These
guidelines are consistent with the State’s constitutional duty to
protect life, limb and property by diligently prosecuting
crime. A
balancing exercise has to be undertaken on a case-by-case basis. It
becomes a matter of context and proportionality.
Two competing
considerations have to be weighed by the sentencing court.
The first is
the importance of maintaining the integrity of family care. The
White Paper for Social Welfare underlines that
“
[t]he well-being of children
depends on the ability of families to function effectively. Because
children are vulnerable they need
to grow up in a nurturing and
secure family that can ensure their survival, development, protection
and participation
38
in family and social life. Not only do families give their members a
sense of belonging, they are also responsible for imparting
values
and life skills. Families create security; they set limits on
behaviour; and together with the spiritual foundation they
provide,
instill notions of discipline. All these factors are essential for
the healthy development of the family and of any society.”
39
The second
consideration is the duty on the State to punish criminal
misconduct. The approach recommended in paragraph 36
makes
plain that a court must sentence an offender, albeit a primary
caregiver, to prison if on the ordinary approach adopted in
Zinn
a custodial sentence is the proper punishment. The children will
weigh as an independent factor to be placed on the sentencing
scale
only if there could be more than one appropriate sentence on the
Zinn
approach, one of which is a non-custodial sentence. For
the rest, the approach merely requires a sentencing court to
consider
the situation of children when a custodial sentence is
imposed and not to ignore them.
The tension
lies between maintaining family care wherever possible, on the one
hand, and the duty on the State to deal firmly with
criminal
misconduct, on the other. As the
Zinn
triad recognises, the
community has a great interest in seeing that its laws are obeyed
and that criminal conduct is appropriately
prosecuted, denounced and
penalised. Indeed, it is profoundly in the interests of children
that they grow up in a world of moral
accountability where
self-centred and anti-social criminality is appropriately and
publicly repudiated. In practical terms, then,
the difficulty is
how appropriately and on a case-by-case basis to balance the three
interests as required by
Zinn
,
without disregarding
the peremptory provisions of section 28. This requires a nuanced
weighing of all the interlinked factors in
each sentencing process.
The normative setting for the balancing will be the intricate
inter-relationship between sections 28(1)(b)
and 28(2) of the
Constitution, on the one hand, and section 276(1) of the CPA on the
other.
The
Zinn
triad postulates that an element of the circumstances of the primary
caregivers that will be taken into account is the special
severity
for the caregivers of being torn from their children. This,
however, is a consequence of their misconduct for which the
law, in
the light of all the circumstances, will require that they take
appropriate responsibility. Section 28(1)(b) is concerned
with
something different, namely, the indirect but potentially very
powerful impact on the children.
The children
are innocent of the crime. Yet, as the amicus points out,
children’s needs and rights tend to receive relatively
scant
consideration when a primary caregiver is sent to prison. The
amicus asserts that in practice the
Zinn
triad is usually
applied in a manner that focuses on the offender and pays little
attention to the children. Yet, separation from
a primary caregiver
is a collateral consequence of imprisonment that affects children
profoundly and at every level. Parenting
from a distance and a lack
of day-to-day physical contact places serious limitations on the
parent-child relationship and may have
severe negative consequences.
The children of the caregiver lose the daily care of a supportive
and loving parent, and suffer
a deleterious change in their
lifestyle.
40
Sentencing officers cannot always protect the children from these
consequences. They can, however, pay appropriate attention
to them
and take reasonable steps to minimise damage. The paramountcy
principle, read with the right to family care, requires
that the
interests of children who stand to be affected receive due
consideration. It does not necessitate overriding all other
considerations. Rather, it calls for appropriate weight to be given
in each case to a consideration to which the law attaches
the
highest value, namely, the interests of children who may be
concerned.
Howells
41
is an example of a case where attention was carefully given to the
interests of children. The appellant had been convicted in
the
Regional Court of having defrauded her employer to the extent of
approximately R100 000. She had been sentenced by the Regional
Court to four years’ imprisonment in terms of section 276(1)(i) of
the CPA. The appellant was divorced and had three dependent
children. Two factors counted strongly against her: she had spent
most of the proceeds of her crime on gambling, and she had a
previous conviction for fraud. Van Heerden AJ introduced the
constitutional dimension in the following manner:
“
I have anxiously considered
the effect on the minor children of the sentence imposed by the
magistrate, bearing in mind the constitutional
injunction that ‘a
child’s best interests are of paramount importance in every matter
concerning the child’, as also the constitutionally
entrenched
right of every child ‘to family or parental care, or to appropriate
alternative care when removed from the family environment’”.
42
(Reference omitted.)
Van Heerden AJ
observed further that the best interests of the child principle,
which formed part of our common law as developed by
the courts, had
been given international significance by the ratification by South
Africa of the CRC, which provides in article 3(1)
that
“
[i]n all actions 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.”
43
She then went
on to hold that there was a real risk that should the appellant be
imprisoned the children would have to be taken
into care. Although
this was highly regrettable and made her reluctant to condemn the
appellant to imprisonment, van Heerden AJ
nevertheless decided to
uphold the sentence on the basis that it was necessary to serve the
interests of society and the element
of deterrence. Emphasising the
need simultaneously to protect the interests of the appellant’s
children, however, she made special
provision in the order to ensure
that the Department of Welfare and Population Development would be
requested to see to it that
the children were properly cared for
during their mother’s imprisonment and kept in touch with her.
44
Howells
and
P
45
illustrate that there is scope for a balancing analysis involving
section 28 within the current sentencing framework. The courts
in
these matters relied on the
Zinn
triad; both had regard to
the CRC; and both explained why on the facts of the case
correctional supervision alone would be insufficient.
46
What distinguishes
Howells
from the approach of the
sentencing courts in the present matter is not the outcome so much
as the character of the analysis.
In
Howells
the
implications of section 28 were expressly weighed. In the present
matter, as will be seen, they were barely touched upon.
The
required balancing exercise was not properly conducted.
II. Whether the
duties were observed in this case
A rather
perfunctory question put to M by the Regional Magistrate and by the
prosecutor at her trial centred around whether, if
she went to
prison, the children would not be on the street.
47
That enquiry was inadequate. The quality of alternative care
should have been more fully investigated, as well as the potential
impact that splitting the children up and moving them would have had
on their schooling and other activities. Similarly, attention
should have been paid as to who would maintain the children in M’s
absence. It might well be that the Regional Magistrate would
have
decided that the behaviour of M was so bad that even if the effect
on the children would be drastic, a custodial sentence
could not be
avoided. In these circumstances, however, the Court should have
ensured through an appropriate order that the negative
impact on the
children was reduced as much as possible.
48
Yet, no social worker’s report was called for. Nor was any other
method used for acquiring adequate information. The Regional
Magistrate when imposing the sentence simply stated
:
“
You
are a mother of minor children. The Court has had regard to that but
I am satisfied that if the Court at the end of the day would
impose
imprisonment here that they will be accommodated as such.”
49
There was
virtually nothing in the Regional Magistrate’s reasons for
sentence to show that she applied a properly informed mind
to the
duties flowing from section 28(2) read with section 28(1)(b). It
appears from the argument advanced on behalf of the State
that the
Regional Magistrate was acting in a manner largely consistent with
current practice. If, however, paramountcy of the
children’s
interests is to be taken seriously, and this is present sentencing
practice, this practice needs to be reviewed so
as to bring it in
line with constitutional requirements.
I conclude
therefore that the Regional Magistrate passed sentence without
giving sufficient independent and informed attention as
required by
section 28(2) read with section 28(1)(b), to the impact on the
children of sending M to prison. This failure carried
through into
the approach adopted by the High Court. Though the High Court was
not unsympathetic to the plight of M and her children,
and noted
that imprisonment would be hard both for her and the children, it
should have gone further and itself made the enquiries
and weighed
the information gained. In these circumstances the sentencing
Courts misdirected themselves by not paying sufficient
attention to
constitutional requirements. This Court is therefore entitled to
reconsider the appropriateness of the sentence imposed
by the High
Court.
III. What order,
if any, should this Court make?
(a) Should this
Court decide the sentence?
The first
question to be decided is whether this Court should itself resolve
the issue of sentence or else remit it to the Regional
Court or the
High Court. Appeal courts are generally reluctant themselves to
determine what an appropriate sentence should be.
Accordingly,
having found a misdirection to have existed, this Court would
ordinarily remit the matter either to the Regional
Court or to the
High Court to pass sentence afresh in the light of this judgment.
In the present matter, however, there are two
special features that
point away from remitting the matter. Both flow from the fact that
this has become something of a test case.
In the first
place, this Court has received comprehensive, carefully researched
and well-drafted reports from different sources
concerning the
interests of the children.
50
In addition we have heard argument from counsel on both sides, as
well as from the curator and the amicus, on what the appropriate
sentence should be. Secondly, the delays involved in pursuing the
initial prosecution followed by appeals first to the High Court,
then to the Supreme Court of Appeal and finally to this Court,
together with the need to ensure that a curator was appointed to
protect the interests of the children, has meant that many years
have elapsed since the offences were committed. It is clearly
in
the interests of the children and of all concerned that the matter
achieves finality. In these special circumstances the interests
of
justice require that this Court itself bring the matter to a close
by determining the appropriate sentence. I accordingly consider
the
question of what the sentence should be.
I turn to the
extensive information provided by the curator and the Department of
Social Development. Though in argument some differences
in the
respective reports are acknowledged, they were said to relate
essentially to evaluations as to how well the children could
adapt
to being placed under alternative family care, rather than to
questions of fact. On the basis that it would not be in the
interests of the children for the matter to be unduly prolonged, we
were urged to follow the recommendations of the curator that
an
appropriate correctional supervision order be imposed.
On the other
hand, as counsel for the State pointed out, the starting point must
be that M has defrauded members of the community
not once, not
twice, but three times, and done so over a period of years,
apparently having been unable to control her dishonest
impulses
while under a suspended sentence and then later while released on
bail. When refusing her request for correctional supervision
the
High Court stated:
“
It . . . appears, as found by
the magistrate, that the present offences were committed over a
period of time while she had ample time
to reflect and to desist from
such criminal conduct. If one takes as an example the charges
relating to the fraudulent use of a
third party’s credit card, it
appears that appellant had used the credit card for payment of her
purchases on no less than 32 occasions
at various retailers over a
period of more than three months. This shows careful and deliberate
planning on the part of the appellant.
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 regular source of income through her cleaning
business. A sentence of imprisonment
will no doubt cause her and her
children great hardship. However, one has to take the interests of
the community into account.”
51
The State submitted
that this Court should confirm the sentence imposed by the High
Court.
M’s counsel,
with the support of the curator, responded that she had already
spent three months in prison, one month while awaiting
trial before
having been granted bail, and three months serving her sentence
before being released on bail. Furthermore, the delay
in finalising
the matter had in fact provided M with the opportunity to
demonstrate her capacity to develop business activities
and increase
her income, apparently through honest endeavour. For seven years
she had manifested an ability and a will to function
actively in
society, apparently without breaking the law.
He added that
all the reports indicate that she is a good parent in her dealings
with her children and that they are devoted to
her; even though some
alternative family care could be arranged if she were to go to
prison, this could involve splitting up the
children and placing
them in homes far away from the schools they presently attend and
the community in which they live. As the
curator pointed out, they
live in a socially fragile environment and are at an age where major
disruptions to their lives could
have seriously deleterious
consequences. Further imprisonment would in all probability impose
more strain than the family could
bear, with potentially devastating
effects on the children.
It was further
contended that M had indicated in the correctional supervision
report that she would pay back her victims, starting
with the R4 000
of her bail money and putting aside R1 500 per month to cover
the rest of the R19 000 she derived
from her fraudulent
conduct. Such repayments would contribute positively towards
achieving the objectives of restorative justice
in a most direct
way. M could be required to work out a schedule of repayments and
then repay the amounts through direct encounter
with the persons she
defrauded. It was stated that such payment to the victims would be
far more meaningful from a community point
of view than payment of a
fine to the State.
The argument in
favour of correctional supervision concluded by proposing that M
could be obliged to do work in the community that
is manifestly of a
socially beneficial character. This would simultaneously and in a
practical way reconcile the personal interests
of M and her children
with those of the community.
(b) Correctional
supervision or custodial sentence?
The second
question which arises is whether paying due regard to the interests
of the children requires imposing a correctional
supervision order
on conditions which do not necessitate further imprisonment.
Alternatively, are the facts of the case so compelling
that the
sentence of the High Court should be confirmed with a
Howells
type order ensuring that the interests of the children receive
particular attention from the authorities? The answer requires
a
close examination of the purposes of correctional supervision,
giving special attention to the manner in which it relates to
the
interests of the children in this matter.
The
Legislature, by the introduction of correctional supervision, has
sought to distinguish between two types of offenders: those
who
ought to be removed from society and imprisoned and those who,
although deserving of punishment, should not be so removed.
52
This Court has held that:
“
The
introduction of correctional supervision with its prime focus on
rehabilitation, through section 276 of the Act, was a milestone
in
the process of ‘humanising’ the criminal justice system. It
brought along with it the possibility of several imaginative
sentencing measures including, but not limited to, house arrest,
monitoring, community service and placement in employment. This
assisted in the shift of emphasis from retribution to rehabilitation.
This development was recognised and hailed by Kriegler AJA
in
S
v R
as being the
introduction of a new phase in our criminal justice system allowing
for the imposition of finely-tuned sentences without
resorting to
imprisonment with all its known disadvantages for both the prisoner
and the broader community.
The development of this process
must not be seen as a weakness, as the justice system having ‘gone
soft’. What it entails is
the application of appropriate and
effective sentences. An enlightened society will punish offenders,
but will do so without sacrificing
decency and human dignity.”
53
(Footnote omitted.)
Correctional
supervision is a multifaceted approach to sentencing comprising
elements of rehabilitation, reparation
54
and restorative justice. The South African Law Commission (the
SALC) has underlined the importance of correctional supervision,
observing:
“
There is increasing
recognition that community sentences, of which reparation and service
to others are prominent components, form
part of an African tradition
and can be invoked in a unique modern form to deal with many crimes
that are currently sanctioned by
expensive and unproductive terms of
imprisonment.”
55
(Footnote omitted.)
The
SALC reports that specific legislative provision has been made in
other jurisdictions for a wide range of community-based sentences,
including participation in victim-offender mediation and family group
conferencing,
56
which are prominent forms of restorative justice.
57
The imprisonment of offenders for less serious offences and for
impracticably short periods was identified by the SALC as a
shortcoming
of the existing sentencing system.
58
In
S v R
Kriegler AJA noted that correctional supervision does not so much
describe a specific sentence but is a collective term for a wide
range of measures which share one common feature, namely, that they
are executed within the community.
59
It is aimed at enabling offenders to lead a socially responsible
and crime-free life during the period of their sentence and

thereafter.
60
A sentence of correctional supervision endeavours to ensure that
offenders abide by the conditions imposed upon them so as to
protect
the community from offences which such persons may commit.
61
A requirement for the imposition of a sentence of correctional
supervision is that the offender agrees not only to such sentence,
but also to the stipulated conditions ordered
62
and undertakes to co-operate in meeting them.
It is an
innovative form of sentence, which if used in appropriate cases and
if applied to those who are likely to respond positively
to its
regimen, can serve to protect society without the destructive impact
incarceration can have on a convicted criminal’s
innocent family
members.
63
Thus, it creates a greater chance for rehabilitation than does
prison, given the conditions in our overcrowded prisons. The SALC
cautioned in 2000 that “South African prisons are suffering from
overcrowding that has reached levels where the conditions of
detention may not meet the minimum standards set in the
Constitution.”
64
Another
advantage of correctional supervision is that it keeps open the
option of restorative justice
65
in a way that imprisonment cannot do. Central to the notion of
restorative justice is the recognition of the community rather
than
the criminal justice agencies as the prime site of crime control.
66
Thus, our courts have observed that one of its strengths is that it
rehabilitates the offender within the community,
67
without the negative impact of prison and destruction of the family.
It is geared to punish and rehabilitate the offender within
the
community leaving his or her work and domestic routines intact, and
without the negative influences of prison.
68
As Kriegler AJA
has observed, it should not be categorised as a lenient alternative
to direct imprisonment.
69
It can, depending on the circumstances, involve an exacting
regime, even house arrest.
70
In similar vein Conradie J has emphasised that
“
[i]n some ways it is harder
than imprisonment. A cynic once said that the easiest life on earth
is being a soldier or a nun: you
only have to obey orders. Prison is
like that. A model prisoner is the one who best obeys orders. These
are not ideal circumstances,
generally, for the regrowth of
character. Correctional supervision gives an offender greater scope
for regrowth of character. It
involves a good deal of psychological
strain, it takes a great deal of restraint and determination on the
part of a probationer.
It can be very stressful. A probationer does
not have his freedom — far from it — but he is not cut off from
the community
altogether. His support systems are not destroyed and
in this way his rehabilitation prospects are enhanced. Moreover,
there is
the benefit that society does not lose the skills of someone
who is able to maintain himself and his dependants, as well as the
family
unit. Community service, which goes hand in hand with
correctional supervision, is beneficial.”
71
I now turn to
the forms that correctional supervision can take. A great plus is
its adaptability.
72
Conditions are flexible
73
and can be fashioned to meet the specific circumstances of each
offender’s case. It has ushered in a new sentencing phase because
it is so strikingly diverse.
74
The sentencing courts must themselves identify the specifics of the
correctional supervision sentence,
75
but not necessarily the manner in which it is to be implemented. In
Govender
it was held that while the court should clearly
indicate the duration and extent of the specific components of the
sentence, it
was not desirable for it to specify the manner in which
the sentence is to be carried out.
76
It was held that the court must retain effective control over the
sentence without compromising flexibility.
77
This appears to be a sound principle.
(c) The
appropriate sentence in this matter
M
is a repeat offender and committed the offences over a period of
time and during the suspension period of her previous sentence.
The
offences were deliberate and calculated, involving deception of
people who trusted her. She was driven by greed rather than
need.
Given the seriousness of her misconduct, the sentence of four
years’ imprisonment must stand. M has already spent three months
in prison, one awaiting trial, and two after the sentence was
imposed. The question before us is whether this Court should
backdate
the three months already served,
78
suspend the rest of the sentence, and itself now place her under
correctional supervision on terms that this Court prescribes,
or
whether she should be sent back to prison, allowing correctional
supervision to be considered by the Commissioner after a further
five months.
Sentencing is
always difficult. Nevertheless, I have come to the conclusion that,
with the extra evidence made available to us,
what is called for is
backdating the sentence already served, suspending the rest of the
sentence so that she need not go back
to prison after this order is
issued, and adding a correctional supervision order made by this
Court under section 276(1)(h) of
the CPA.
In coming to
this conclusion I am influenced by the fact that, as the reports
indicate, it is clearly in the interests of the children
that they
continue to receive primary care from their mother. This Court has
not one but three reports. For this reason this
Court is more
favourably placed than the Regional Court and the High Court were.
The custodial sentences they imposed were by
no means incongruent
with the evidence they had before them. What was lacking was a
report concerning the manner in which the
children stood to be
affected. It is clear that M is a single parent who is almost
totally responsible for the care and upbringing
of her sons. Ms
Cawood’s report indicates that all three boys rely on M as their
primary source of emotional security, and that
imprisonment of M
would be emotionally, developmentally, physically, materially,
educationally and socially disadvantageous to
them. In Ms Cawood’s
view, should M be incarcerated, the children would suffer: loss of
their source of maternal and emotional
support; loss of their home
and familiar neighbourhood; disruption in school routines, possible
problems in transporting to and
from school; impact on their healthy
developmental process; and separation of the siblings.
The curator
notes further that M appears to be a devoted mother whose life
revolves around her three children,
79
that she has a loving, nurturing and caring relationship with all
three boys, and that all of the children’s basic needs are
currently being met by M.
80
He points out that the sustained viability of M’s most lucrative
business is threatened if she goes to jail, leaving her without
an
income. The business concerned with ensuring collection of child
maintenance, of which she is the heart and soul, provides
the vast
bulk of her income.
81
It would no longer be operative if she is incarcerated.
82
Without an income M would be unable to afford paying for the upkeep
of the household and she would default on her bond repayments,
resulting in the bank attaching her house and evicting her children
and whoever lives with them. Nor would M be able to afford
maintaining her children while in prison.
The social
report submitted on behalf of the State does not contradict any of
these factual averments. Indeed, it accepts that
should she return
to prison her main business would collapse. The effective thrust of
the report is to establish that the children
will not be abandoned
should M’s sentence be upheld, because alternative family care
could be arranged. Whether or not some
form of alternative family
care could be provided is the one issue that cannot be determined on
the papers. Suffice it to say
that the proposal that M’s sister
and her family take care of the three children or only the younger
two while the older one
moves to stay with his father, or arranging
alternative non-family care, cannot be in the best interests of the
children.
83
The evidence
made available to us establishes that, despite the bad example M has
set, she is in a better position than anyone else
to see to it that
the children continue with their schooling and resist the pressures
and temptations that would be intensified
by the deprivation of her
care in a socially fragile environment. It is not just a question
of whether they would be out on the
street. And it is not just M
and the children who have an interest in the continuity of her
guidance. It is to the benefit of
the community, as well as of her
children and herself, that their links with her not be severed if at
all possible.
Important
though this factor is, I do not believe that on its own it should be
decisive in this case. It takes on special significance
because it
is allied to other considerations pointing towards the advantages
for all concerned of M receiving correctional supervision
without
further imprisonment.
To start with,
her offer to repay the persons she defrauded appears to be genuine
and realistic. It would have special significance
if she is
required to make the repayments on a face-to-face basis. This could
be hard for her, but restorative justice ideally
requires looking
the victim in the eye and acknowledging wrongdoing. There might be
practical problems in this case in ensuring
that M meets
individually with each of the many persons she defrauded. The
Commissioner will accordingly be called upon to determine
precisely
how the repayments are to be effected.
84
What matters is that in both a practical and symbolical way M
begins to restore a relationship that would otherwise remain
ruptured.
For M herself this process of acknowledgement and
reconciliation removes the silent brand of criminality that
imprisonment would
bring, and facilitates restoration of trust and
her reintegration into the community.
At the same
time, simply paying back the fruits of her crime would not be
sufficient. M should be required to do a substantial
amount of
community service to mark and respond to the extent of her
depredations on the community. Credit card fraud destroys
trust.
The whole community loses. Bearing in mind the amount of time she
needs to spend on her business activities and on looking
after the
children, she should be required to devote ten hours a week for
three years to doing community service. The Commissioner
should
determine precisely what form the sentence should take, together
with the manner in which it is to be supervised. The objective
should be for her to do truly useful work so that both she and the
community feel rewarded.
Furthermore, M
displayed a degree of compulsive deception in circumstances where
she was bound to be caught sooner or later. She
is clearly a person
of considerable drive and capacity. The work she does not only
brings her an income, it fulfils a community
need. Yet, all this
stands to be ruined if a compulsion to cheat reasserts itself in
her. Counselling is called for. She, society
and her children can
only benefit if she gains insight into what led her to prey
deceitfully and recklessly on store after store.
Here too the
Commissioner should establish an appropriate regimen for
counselling, and monitor compliance.
Finally, it is
necessary to place in the balance the following facts. M has shown
a meritorious aptitude to organise her life productively
and pursue
successful entrepreneurial activities during the past seven years.
There is no suggestion on the papers that she has
behaved
dishonestly during this period. She has a fixed address and has
been stated to be a suitable candidate for correctional
supervision.
It is in the public interest to reduce the prison population
wherever possible. To compel her to undergo further
imprisonment
would be to indicate that community resources are incapable of
dealing with her moral failures. I do not believe
that they
necessarily are. Nor do I believe that the community should be seen
simply as a vengeful mass uninterested in the moral
and social
recuperation of one of its members. M has manifested a will to
conduct herself correctly. As the courts have pointed
out, persons
should not be excluded from correctional supervision simply because
they are repeat offenders.
85
None of the
above should be seen as diminishing the seriousness of the offences
for which she was properly convicted. Nor should
it be construed as
disregarding the hurt and prejudice to the victims of her fraud.
Nevertheless, I conclude that in the light
of all the circumstances
of this case M, her children, the community and the victims who will
be repaid from her earnings, stand
to benefit more from her being
placed under correctional supervision
86
than from her being sent back to prison.
Order
The following
order is made:
Leave to appeal against the sentence imposed by the Cape High
Court is granted.
The appeal is upheld.
The sentence imposed by the High Court is set aside and
replaced by the following:
(a) The accused is sentenced to four years’ imprisonment with
effect from 29 May 2003.
(b) The 45 months of her imprisonment still to be served is
suspended for four years on condition that she is not convicted of an
offence which is committed during the period of suspension and of
which dishonesty is an element, and further on condition that she
complies fully with the order set out in paragraph (d) below.
(c) The accused is
placed under correctional supervision in terms of
section 276(1)(h)
of the
Criminal Procedure Act 51 of 1977
for three years, which
correctional supervision must include the following:
(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
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
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.
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.
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”.
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.
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.
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.
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:
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;
were these
duties observed in this case; and
if it is held
that those duties were not observed, what order should this Court
make in this case, if any?
Issues
As I see the
matter, the real issues that need to be considered in this case
are:
The
considerations, duties and approaches of sentencing courts in
respect of the best interests of children;
to what extent
a recidivist primary caregiver of minor children can avoid a
custodial sentence; and
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
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.
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 CPA
3
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.
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
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.
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
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.”
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
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”.
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
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
.
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).
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.
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
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.
The amicus
7
and the
curator
8
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.
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).
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.)
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.
The precedents
set in
S v Kika
9
and
Howells v S
10
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
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.
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.
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
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.
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.
In
Hodder v
The Queen
14
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.”
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
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 S
19
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
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
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
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
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
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
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
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
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
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
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
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.
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.
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.
>
62
Section 51(2)
of the
Correctional Services Act.
>
63
S
v Schutte
1995 (1) SACR 344
(C) at 350c-d.
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.