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[2011] ZACC 7
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S v S (CCT 63/10) [2011] ZACC 7; 2011 (2) SACR 88 (CC); 2011 (7) BCLR 740 (CC) (29 March 2011)
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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 63/10
[2011] ZACC 7
In the matter between:
S
............................................................................................................................
Applicant
and
THE STATE
…..................................................................................................
Respondent
together with
CENTRE FOR CHILD LAW Amicus Curiae
Heard on : 9 November 2010
Decided on : 29 March 2011
JUDGMENT
KHAMPEPE
J:
Introduction
This is an application for leave to appeal against the decision of
the Supreme Court of Appeal that dismissed, with reasons,
1
an application for leave to appeal against a decision of the Free
State High Court, Bloemfontein (High Court) in effect confirming
a
sentence imposed by the Regional Court at Parys (Regional Court).
The High Court had refused Mrs S’s petition in terms
of
section 309B of the Criminal Procedure Act
2
(the Act).
The issue raised in the application is whether the sentencing court
and the Supreme Court of Appeal, in their reasons, followed
the
correct approach to sentencing as set out in the decision of this
Court in
S v M
.
3
Mrs S contends that the Regional Court and the Supreme Court of
Appeal failed to establish whether she was a primary caregiver
with
the result that the sentence imposed paid insufficient regard to
the best interests of her children. Mrs S argues that
had the
approach in
S v M
been followed, the sentencing court would
not have imposed a custodial sentence.
Factual
background
Mrs
S is a 33 year old married mother of two children, a daughter, E,
born 12 August 2002, and a son, H, born 12 October 2005.
During
December 2005, whilst employed at a firm of insurance brokers, she
falsified a valuation certificate in respect of a
wristwatch and a
ring by altering it to a certificate in respect of a ring only.
4
She also effected a further alteration by substituting her own name
for that of the true owner. During January 2006, she lodged
a claim
for the loss of the ring with Mutual & Federal Insurance, but
the claim was not met. The potential loss to the
insurance company
was R42 000.
5
Proceedings
in the Regional Court
On
20 March 2007, she pleaded guilty to forgery, uttering and fraud in
the Regional Court. She testified in mitigation of her
sentence.
The State led the evidence of Ms Marinda Viljoen (Ms Viljoen), a
probation officer, whose report was also received
as evidence. The
evidence can be summarised as follows.
Mrs
S has had a difficult upbringing as her father abused alcohol and
when in a state of insobriety, he assaulted her, her mother
and her
siblings.
6
She was compelled to leave school at a young age to seek employment
in order to support her family. She is married and has
had a
tempestuous relationship with her husband but has on occasions been
on good terms with her mother-in-law. On other occasions,
she has
accused her mother-in-law of siding with her husband with regard to
his extra-marital affair. Regarding her offences,
she explained
that she had committed the offences when she was experiencing
financial difficulties as a result of paying for
her daughter’s
medical fees. Her children require special care. Her daughter
suffers from a dysfunctional heart valve.
E has had surgery and
requires constant medication for which Mrs S and her husband have
to pay. H suffers from chronic chest
infections and the doctor
suspects that he has asthma and requires constant attention.
Ms
Viljoen’s pre-sentence report portrayed Mrs S in a bad light,
as manipulative, dishonest, greedy, sly and as a troublemaker
who
drank alcohol in excess. It also presented her as being
irresponsible in the management of her finances. The report was
compiled on the basis of the interviews Ms Viljoen conducted with
Mrs S’s previous employers and her husband’s
family.
The report found that, should a custodial sentence be imposed,
there would be an adequate family support system to
care for the
children and that Mrs S’s mother-in-law would assist Mr S to
care for the children.
For
purposes of sentencing, the counts of forgery and uttering were
taken together and Mrs S was sentenced to two years’
imprisonment, conditionally suspended for five years. On the count
of fraud, she was sentenced to five years’ imprisonment
with
conditional correctional supervision in terms of section 276(1)(i)
of the Act.
7
She has a previous conviction for fraud also committed in the
course of her employment with her previous employer. For that
conviction, she received a suspended sentence of imprisonment on
condition that she, amongst other things, compensate the
complainant through regular monthly repayments. She defaulted on
these payments. In determining her sentence, the court took
into
account that Mrs S’s mother-in-law had agreed to assist Mr S
to look after the children. Mrs S, following the imposition
of her
sentence, applied for leave to appeal against sentence. Leave was
refused.
Court
proceedings preceding Supreme Court of Appeal
Leave
to appeal against sentence having been refused, Mrs S applied to
the High Court to lead the further evidence of a social
worker, Dr
Wessels, on sentence. The application for leave to lead further
evidence was filed together with a petition for
leave to appeal.
The High Court granted leave to appeal and remitted the matter to
the Regional Court, in terms of section
309C(7)(d) of the Act,
8
for the reception of the further evidence, without deciding the
petition.
The
Regional Court received the evidence of Dr Wessels in terms of
section 309B(5)(c)(i) of the Act, but omitted to record its
findings as required by section 309B(5)(c)(ii).
9
The petition and the further evidence of Dr Wessels were then
served before the High Court, which refused leave to appeal.
Mrs
S then applied to the High Court for leave to appeal this refusal.
During the hearing of that application, the State submitted
that
the interests of justice required that the sentence be set aside
and remitted to the Regional Court for reconsideration.
The High
Court, regarding itself as
functus officio
, granted leave to
appeal to the Supreme Court of Appeal.
Supreme
Court of Appeal proceedings
The
Supreme Court of Appeal found that the High Court had erroneously
considered the petition and Dr Wessels’s further
evidence
because the High Court did not have the recordal of findings before
it.
10
It found that the recordal of the findings pertaining to further
evidence did not comply with section 309B(5)(c)(ii) of the
Act, as
the Regional Court had failed to make a finding on the cogency and
sufficiency of the evidence.
11
Notwithstanding, it found that these irregularities were not
insurmountable since the Supreme Court of Appeal was in no worse
a
position to consider the further evidence of Dr Wessels than if the
Regional Court had properly recorded the further evidence.
In
deciding the merits of the application for leave to appeal, the
Supreme Court of Appeal noted the striking dichotomy between
the
reports of Ms Viljoen and Dr Wessels,
12
but found it unnecessary to resolve them, as it accepted the
evidence in the report of Dr Wessels.
13
Dr Wessels’s report portrayed Mrs S quite propitiously; that
she was a loving and caring mother who maintained gainful
employment in order to provide for the family. Despite this, the
Supreme Court of Appeal found that:
“
The
sentence imposed is in line with sentences imposed generally for
similar offences. There is nothing in the circumstances of
this
matter with regard to the appellant or the offence which persuade me
that there is a reasonable prospect of the high court
interfering on
appeal with the sentence imposed. The conditional suspension of the
term of imprisonment on counts 1 and 2 and
the term of imprisonment
from which the appellant may be placed under correctional
supervision in the discretion of the Commissioner
or a parole board
on count 3, provides the appellant with another opportunity for
rehabilitation mostly outside prison.”
14
(Footnote omitted.)
It
held that there were no reasonable prospects of success in an
appeal against her sentence. The application for leave to appeal
against the refusal of Mrs S’s petition in the Regional Court
was accordingly dismissed.
15
Before
considering the main issues raised in this case, it is necessary to
consider two preliminary issues. The first is whether
the late
filing of the application for leave to appeal and the late filing
of the record should be condoned. The second is
whether leave to
appeal should be granted.
Condonation
The
test for determining if condonation should be granted is whether it
is in the interests of justice.
16
Factors relevant to this inquiry include, but are not limited to:
the extent and cause of the delay; the prejudice to other
litigants; the reasonableness of the explanation for the delay; the
significance of issues to be decided in the intended appeal;
and
the prospects of success. None of these factors are decisive. The
inquiry is one of weighing each against the others in
order to
determine where the interests of justice lie.
17
Mrs
S has applied for condonation for the late filing of the
application for leave to appeal, which was filed more than two
months late, and for the late filing of the record. The delay was
occasioned by the difficulty in obtaining counsel with the
requisite experience in constitutional litigation.
The
record was lodged nine days late. The delay was occasioned by a
lack of proper communication between Mrs S’s attorneys
and
the correspondent attorneys with regard to the lodging of the
record.
The
State does not oppose these applications. In view of the importance
of the right the Constitution confers on every child
in terms of
section 28 of the Constitution,
18
I do not consider the prospects of success to be decisive of
condonation here. In any event, there is, in my view, a
satisfactory
explanation for the delay, and there was no prejudice
to the State. In these circumstances, it is in the interests of
justice
to grant condonation for both the late filing of leave to
appeal and the late filing of the record.
Should
the application for leave to appeal be granted?
The
application for leave to appeal should be granted only if two
important considerations are satisfied. The first is whether
the
application raises a constitutional issue. The second is whether,
if it does, it is in the interests of justice to hear
the appeal.
Where the interests of justice lie will depend on a number of
considerations, including the prospects of success
in the intended
application.
19
I deal with each below.
Does
the application for leave to appeal raise a constitutional matter?
The
question whether the sentencing courts have properly considered the
best interests of the children in the light of section
28 of the
Constitution when imposing sentence is a constitutional matter.
20
But,
is it in the interests of justice to grant leave to appeal having
regard to Mrs S’s prospects of success in the matter?
It is
to this question that I turn. This Court in
S v M
has
highlighted that every child has the right to enjoy special care.
21
Children are vulnerable and require a nurturing and secure family
for their development.
22
To this extent, sentencing courts must perform their function in
matters concerning the rights of children in a manner which
at all
times shows due respect for children’s rights and that brings
to bear focused and informed attention to the needs
of the children
at appropriate moments in the sentencing process.
23
The question whether the sentencing courts had proper regard for
the children’s best interests when imposing sentence
is a
serious matter that strikes at the core of the administration of
justice. The interests of justice demand that this Court,
as the
ultimate guardian of both the Constitution and children,
investigate whether the High Court and the Supreme Court of
Appeal
have exercised their discretion in line with the requirements of
section 28 of the Constitution.
The
allegation that a court imposed sentence without paying appropriate
attention to the children’s best interest is an
important
constitutional issue that goes beyond the interests of the parties.
The prospects of success should, in the light
of the importance of
this constitutional issue, yield to the interests of justice. In
the circumstances, leave to appeal should
be granted.
Merits
As
already indicated, Mrs S in this Court challenges the decision of
the Regional Court and the Supreme Court of Appeal. Her
pivotal
complaint is that the courts did not consider the interests of the
children when they considered her sentence. It was
argued that the
Regional Court did not take heed of the best interests of the minor
children in terms of section 28 of the
Constitution in that no
inquiry was conducted to establish if Mrs S was a primary
caregiver. Had this inquiry been conducted,
so it was contended, a
custodial sentence would not have been imposed, as its imposition
would render the children without
a caregiver. It was argued that
the courts’ failure to conduct this inquiry was a serious
misdirection warranting the
setting aside of the sentence.
Mrs
S also applied to lead further evidence on the basis that the
circumstances might have changed in relation to the care and
welfare of the children. In this regard, it was contended that the
further evidence of a social worker might shed more light
on the
impact the custodial sentence would have on the children. It was
contended that, whilst Mrs S’s mother-in-law
was no longer
willing to care for the children, Mr S would not be able to care
for the children properly.
It
was contended that the Supreme Court of Appeal, notwithstanding the
evidence of Dr Wessels, failed to demonstrate the shift
in judicial
mindset enunciated in
S v M
. It was argued that the court
simply failed to have regard to the best interests of the children
and this failure constituted
a serious misdirection warranting the
sentence to be set aside.
The
State opposes the appeal. It contends that the best interests of
Mrs S’s minor children were taken into account by
the
previous courts and that these courts properly followed the
approach in
S v M.
Counsel for the State contended that this
case was distinguishable from
S v M
in that Mrs S’s
husband is available to take care of the children whilst she is
serving her term of imprisonment.
The
Centre for Child Law of the University of Pretoria was admitted as
amicus curiae (amicus). The amicus made written and oral
submissions. Its submissions were that the Regional Court and the
Supreme Court of Appeal did not pay adequate attention to
the best
interests of the minor children. It emphasised that there was
insufficient evidence on the quality of care the children
would
receive from the family structure. It urged this Court to appoint a
curator ad litem to investigate whether the circumstances
might
have changed and what would be in the best interests of the minor
children in the circumstances, even if the sentence
was not set
aside.
On
15 November 2010, this Court appointed Advocate Reinders (curator),
a practising advocate at the Free State Bar Council,
as a curator
ad litem in respect of the minor children of Mrs S. This Court is
indebted to the curator. The directions issued
by the Chief
Justice, dated 6 December 2010, required the curator to compile and
submit a report dealing with: (a) what effect,
in the event of this
Court dismissing the application for leave to appeal, a custodial
sentence would have on the children;
and (b) what measures, if any,
would need to be taken to ensure that the children are adequately
cared for, if their mother
is incarcerated.
The
curator produced a report whose factual findings are not disputed.
The parties, together with the amicus
,
were invited to make
written submissions regarding the report. Written submissions were
received from Mrs S and the amicus,
to which I shall return, whilst
the State elected not to make any submissions in this regard.
Mrs
S advances two interrelated grounds of appeal that support her
principal complaint that the Regional Court and the Supreme
Court
of Appeal failed to adopt the child-centred approach that requires
that the best interests of the children should be
taken into
account in the imposition of sentence. She draws attention to her
evidence in the Regional Court, which, she says,
lends support to
her assertions that she is a primary caregiver and the imposition
of a custodial sentence was inappropriate
as it would render the
children without a caregiver. She points out that the evidence
which was served in that court included
the following: that the
children were financially and emotionally dependant on Mrs S; and
that the imposition of sentence would
have a deleterious effect on
the children. She posits that the Regional Court already found that
Mr S would, in view of his
working conditions, be unable to
shoulder the responsibility of caring for the children. She
contends that in the light of
the evidence that served in the
Regional Court, that court was required to apply the paramountcy
principle in determining an
appropriate sentence. She argues that
the custodial sentence was not the only appropriate sentence to
impose in the circumstances.
In doing so, she places reliance on
S
v M
, arguing that her case falls squarely within it.
The
high watermark of her complaint against the Supreme Court of Appeal
is that the Supreme Court of Appeal, failed to follow
the approach
set out in
S v M
when sentencing a primary caregiver. I
point out, in passing, that this Court held that the standard
preoccupations of all
sentencing courts should be the consideration
of the best interests of the children, including the consideration
of the quality
of care that they would obtain in the event of her
incarceration.
24
Counsel
for Mrs S argued that the evidence of Dr Wessels had established
that Mr S was prevaricating about shouldering the responsibility
of
caring for the children, that his mother was no longer available
and willing to assist in the care of the children, and
that
incarcerating Mrs S would be so traumatic as to deleteriously
affect the interests of the children. It was therefore contended
that the decision of the Supreme Court of Appeal to refuse the
petition was a serious misdirection that should warrant the
setting
aside of the sentence.
In
any event, the State contends that the Regional Court and the
Supreme Court of Appeal properly considered the best interests
of
the children. It submits that this case is distinguishable from
S
v M
in that the children’s father is available to care
for the children. In my view, all these submissions cannot be
properly
considered without putting in context the principles
articulated in
S v M
. I briefly do so hereunder.
The applicable test
The
correct guidelines to be adopted by the sentencing courts, where a
custodial sentence of a primary caregiver is in issue,
are set out
in
S v M
. They are:
“
(a) A
sentencing court should find out whether a convicted person is a
primary caregiver whenever there are indications that this
might be
so.
(b) . . . The court should also
ascertain the effect on the children of a custodial sentence if such
sentence is being considered.
(c) 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.
(d) If the appropriate sentence
is clearly non-custodial, the court must determine the appropriate
sentence, bearing in mind the
interests of the children.
(e) 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.”
25
Did
the previous courts consider the impact the sentence will have on
the minor children?
I
have grave difficulties with whether the Regional Court, being
convinced that the custodial sentence was the only appropriate
sentence to impose, gave due consideration to the adequacy of care
the children would receive while Mrs S is incarcerated.
I am
mindful that a sentencing court is not required to protect the
children from the negative consequences of being separated
from
their primary caregivers. It is required only to pay appropriate
attention to their interests and take reasonable steps
to minimise
damage. This requires a balancing exercise that takes account of
the competing interests.
26
The State submits that this intricate balancing exercise was
undertaken and that Mr S and his family also undertook to care
for
the children. I am unpersuaded by this submission.
Accepting
that the court’s attention was drawn to the need to provide
alternative care for the children (by the Viljoen
report), the
court was required to investigate the effect the sentence would
have on the children. The Court did not fully
investigate the
quality of alternative care the children would receive. Given that
Mrs S’s mother-in-law was not staying
in the same household
as the children, there was no investigation by the Court on who
would look after their daily needs during
Mrs S’s
incarceration. The alternative joint care seemingly considered
between Mr S and his mother was simply not explained.
For instance,
there was neither an enquiry on who would take the children to
school and fetch them, nor was there any consideration
given to how
the children would maintain a relationship with their mother when
she was in prison and which prison would facilitate
ease of contact
between Mrs S and her children. All these matters are important
considerations that the court did not investigate.
Apart
from the above, sight must not be lost that the gamut of the
evidence sketching Mr S as an unsuitable alternative caregiver.
The
evidence showed that he would periodically leave the common home
whilst maintaining liaisons with his paramour. The evidence
also
demonstrated that even when he was present at home he did not play
any significant role with regard to the care of the
children. I
would emphasise that the children’s tender age, and the fact
that they are sickly, simply cries out for the
kind of attention
the Regional Court ought to have paid, when weighing up the
importance of the children’s needs against
the need to punish
the mother.
In
the circumstances, the Regional Court imposed the sentence on Mrs S
without giving adequate and informed consideration to
the impact a
custodial sentence would have on the children. The Supreme Court of
Appeal also failed to follow the proper approach,
notwithstanding
that it received and considered the further evidence of Dr Wessels.
The significance of Dr Wessels’s
report lies in that, it
reports that Mr S’s mother is no longer available to provide
alternative care for the children.
If anything, it obliterates any
reliance there was in the Regional Court on the availability and
willingness of Mr S’s
mother to assist in the care of the
children.
Notwithstanding
this critical evidence, the Supreme Court of Appeal did not apply
its mind to whether it was necessary to take
steps to ensure that
the children would be adequately cared for, having regard to the
changed circumstances relating to the
availability of Mrs S’s
mother-in-law, which Dr Wessels’s report sharply pointed out.
If the principles enunciated
in
S v M
are to serve their
purpose, courts must conduct more robust child-centred enquiries to
ascertain the impact a custodial sentence
will have on the children
of primary caregivers should they be incarcerated. The answer to
the question, whether the sentencing
court has observed the
guidelines, should ordinarily appear from the record itself through
the reasons that are given on sentence.
In
this case, the Supreme Court of Appeal’s consideration of
sentence fell foul of the standard set out in
S v M
. The
amicus submitted that the courts below paid less attention to the
impact of the sentence on the primary caregiver than
the High Court
in
S v M.
I agree. In my view, this would entitle this Court
to consider the appropriateness of the sentence imposed by the
Regional Court.
Should
this Court interfere?
This
Court is indebted to the curator for her report, despite serious
time constraints. This Court is also indebted to the amicus
for its
submissions, in particular on the report of the curator.
It
is perhaps apposite to briefly summarise the contents of the report
before dealing with the submissions presented. The report
highlights the tender age and educational standard of each child.
The daughter is now eight years old and is in grade three,
whilst
the son is five years old and is in Grade R. The curator has
established that Mrs S is the primary caregiver and that
it will
not be in the best interests of the children for Mrs S to be
incarcerated. Her view in this regard is based on the
information
of, an educational psychologist, and the school headmistress, that
Mrs S is the primary source of the children’s
emotional
security and attends to their day-to-day activities such as
preparing them for school and collecting them from school.
Her
finding is that Mrs S’s incarceration will have a deleterious
effect on their emotional and material development.
Mrs
S’s mother-in-law, who used to take care of the children
periodically, has indicated her inability to do so because
she now
suffers from osteo-arthritis and back pain. In the meantime, Mrs S
has improved her position in life since she committed
the crime and
has become a valued employee and devoted parent. Her employer has
indicated that it would not be able to keep
open her position in
the event of her incarceration. Mr S earns R8 500 per month. He is
unable on his own, and without the
additional income of Mrs S, to
pay for the children’s tuition fees, medical expenses and
daily necessities. Although
he reportedly loves his children, he
cannot pay someone to assist him with the care of the children. He
works long hours, from
05h00 until 19h00, from Monday to Friday. Mr
S’s employer has advised that he cannot alter the working
hours of Mr S.
Mrs S has also recited the health problems of her
children and their special needs arising from their illnesses.
Following
the withdrawal of their paternal grandmother, there is no
one to take care of the children, if Mrs S is incarcerated.
As
already indicated, the curator finds that in the event of Mrs S’s
incarceration, the children would not be on the street
because Mr S
would take care of them. The report however, fails to address the
adequacy of care the father would provide. I
therefore have
profound difficulties with the alternative care the report
proposes. In my view, this alternative care is not
supported by the
information contained in this report. It is evident from the
contents of the report that Mr S, by virtue of
his long working
hours, would not be able to adequately care for his children.
Moreover, there is information that his working
conditions cannot
be altered. There is also a paucity of information on who will
prepare the children for school and who will
collect them in the
light of Mr S’s long working hours. There is further no
indication as to who will care for their
special needs as they
suffer from chronic diseases and require constant medical treatment
and attention. It is inconceivable
that Mr S will afford to secure
the assistance that the curator seemingly recommends because, on
the information presented,
there are no available funds. It is only
in these respects that I have found the report wanting. This view
is shared by both
Mrs S and the amicus. Mrs S has argued that
S
v M
requires the quality of alternative care for the children
to be assessed and considered properly during the sentencing
process.
I agree. There is scant information about the quality of
care the children would receive if left with their father under
these
circumstances.
I
accept, as the curator found, that the children will be adversely
affected by the incarceration of their mother as she is
their
primary caregiver. However, this on its own does not impose any
obligation on the sentencing courts to protect, at all
costs, the
children from the inevitable consequences of losing their primary
caregiver if she is incarcerated. All that is
required is that the
court must pay proper attention to these issues and take measures
to minimise damage when weighing up
the competing needs of the
children, on the one hand, and the need to punish Mrs S for her
misconduct, on the other. In
S v M
, this Court stressed that
the importance of paying appropriate attention to the interest of
the children—
“
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.”
27
Given
the information in the report and the curator’s finding that
the incarceration of Mrs S as a primary caregiver will
impact
adversely on the children, and the non-violent nature of the crime
of fraud, I am persuaded by Mrs S’s argument,
which the
amicus supports, that this is a case in which a range of possible
sentencing options would be appropriate. I am minded
that the facts
of this case are indistinguishable from those in
S v M
.
It may be that M committed more crimes. A quick comparison of the
two cases demonstrates that M and Mrs S were both primary
caregivers. They were each convicted of the same offence, namely
fraud. They are repeat offenders. M had been found guilty
of fraud
on three occasions. On the first occasion, M was convicted of fraud
and sentenced to a fine coupled with a term of
imprisonment. The
second occasion related to fraud committed while she was out on
bail. On the third occasion, she committed
38 counts of fraud and
four counts of theft. Mrs’s offences pale in comparison to
those of M. Although M was a single
mother, the fathers of her
children were considered unsuitable caregivers for the children. In
this case, Mrs S’s husband
cannot adequately look after the
children. He has never played any significant role in the care of
these children.
The
only conspicuous difference between M and Mrs
S is that Mrs S is married to an almost absent father, whereas M
was not married
to any of the absent fathers of her children. To
distinguish between the two mothers, on the basis of marital-status
alone,
may in my view serve to create a discrete inequality in the
law contrary to section 9(1) of the Constitution.
28
It should not be presumed that, only on the basis of marriage and
co-residence, the father would take adequate care of the
children.
Even to start the analysis of whether the primary caregiver should
be given a custodial sentence this way, on the
basis that she has a
married partner who lives with her, without regard to the realities
of that family’s life, is too
normative an assessment of how
parental responsibility in marriage is apportioned. The fact that a
primary caregiver is married,
and may be residing with her partner,
is purely another factor to be taken into account and is not
decisive when considering
the sentencing of primary caregivers. The
physical presence of the father does not mean that the father will
be able to take
adequate care of the children. What constitutes a
primary care-giver is the following:
“
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).”
29
It
is incumbent on the courts to start their analysis from the basis
of the best interests of the children, as mandated by section
28 of
the Constitution, not just the mere interests of the children. If
there appears to be a partner of a primary caregiver,
the question
should then be whether that partner can provide adequate care under
section 28(1)(b) of the Constitution or whether
there is evidence
that that parent is inclined to neglect the children’s needs,
contrary to section 28(1)(d) of the Constitution.
30
The curator’s report has failed to address any of the aspects
of Mr S’s potential care.
As I
have already stated, although fraud is a serious crime, it is
non-violent in nature. It is not infrequent that a non-custodial
sentence is imposed.
31
In
S v M,
this Court held that correctional supervision in
terms of section 276(1)(h) of the Act was suitable for M
notwithstanding her
recidivism.
32
I am minded to find that it will not be in the best interests of
the children for Mr S to care for them. Although he stays
with the
children, the evidence demonstrated that he has in the past
periodically left the common home whilst maintaining liaisons
with
his paramour and will not be available to provide for their basic
needs. This is underscored by the evidence of the headmistress
of
the pre-primary school the son attends. Despite that H has been in
the school for four years, the headmistress hardly knows
Mr S. The
person who runs the aftercare business asserted that Mrs S is a
good mother who has a close bond with the children
and attends to
their needs. For all the years the educational psychologist has
taken care of the children, she has seen Mr
S only on a few
occasions.
Undoubtedly,
on the evidence before this Court, Mrs S is the only person who can
adequately look after the needs of the children
and it will not be
in the children’s best interests, taking account of their
ages and health requirements, to sever their
links with her by
imposing a custodial sentence.
Although
Mrs S has wronged society through her criminal misconduct, she has
taken great strides to improve her position at work
and shows great
devotion to her family. Our society is not the kind that bays for
blood at the altar of retribution. Her employer
has confirmed that
she is a valued employee and that her salary has been increased to
R8 000 per month. From the report, Mrs
S is making concerted
efforts to turn away from a life of crime and to be a useful member
of society. There is no suggestion
that she has, since her
conviction, behaved dishonestly. I have anxiously considered her
previous conviction, but have come
to the conclusion that she
should not be excluded from correctional supervision only on that
account. Correctional supervision,
as this Court observed in
S v
M
—
“
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. 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.’”
33
(Footnotes omitted.)
In
the light of all the circumstances, I am of the view that society’s
natural indignation towards crime would still be
satisfied by an
imposition of correctional supervision. In this way, the children
of Mrs S will not suffer from the negative
consequences that flow
from a custodial sentence.
Conclusion
I
would therefore place the applicant under correctional supervision
in terms of section 276(1)(h) of the Act.
CAMERON
J:
I am
indebted to my colleague Khampepe J for her careful exposition of
the facts and issues, which I gratefully adopt. I agree
with her
that condonation should be granted for the late filing of the
application for leave to appeal, and for the lateness
of the
record. I agree too that the application raises a constitutional
issue, and that leave to appeal should be granted on
the basis that
there are reasonable prospects of success. But after reflection I
differ from her conclusion that the appeal
by the applicant, Mrs S,
should succeed. In my view, the appeal should be dismissed, and the
sentence of imprisonment the Regional
Court imposed on her should
stand.
Because
of the fullness and clarity of my colleague’s exposition, my
own reasons are brief. Mrs S was first convicted
of fraud in August
2003. That conviction arose from abuse of her position of trust
with her then employer. She was a first
offender, and received a
suspended sentence. One of the conditions of suspension was that
Mrs S should repay the loss her fraud
caused. She failed to do
that. A further condition of suspension was that she should not be
convicted of an offence involving
fraud committed during the period
of suspension. That condition, too, she breached. This led to the
present proceedings. While
the suspended sentence was still hanging
over her, in March 2007, Mrs S was convicted of fraud for a second
time, together
with further charges of forgery and uttering. Again
the fraud arose from her employment. Again it involved abuse of the
position
of trust her employment reposed in her.
That
Mrs S was now a repeat offender, together with the resemblances in
the two infractions (both arising from her job and entailing
the
violation of trust), and the fact that suspending her sentence had
seemingly not inhibited her, pointed to a custodial
sentence. But
strongly mitigating features also pointed away from prison. Mrs S
pleaded guilty. The insurance company she defrauded
did not
actually pay out, so this time no loss was actually suffered. Mrs S
told the sentencing court that she committed the
second offence at
a time of financial desperation. And her account of her life
related a tale of struggle, survival of which
deserved respect and
sympathy.
In
imposing sentence on the fraud charge, the sentencing court
balanced these factors carefully. The result was that the regional
magistrate imposed on Mrs S the most flexibly lenient form of
custodial sentence the Criminal Procedure Act
34
offers, namely incarceration under section 276(1)(i).
35
The usefulness of this provision comes to the fore when the
sentencing court considers that imprisonment is essential, but
the
circumstances point away from an extended period. It entails
imprisonment, but mitigates it substantially by creating the
prospect of early release on a correctional supervision programme.
36
Mrs
S was sentenced to imprisonment for five years under that
provision. Read with section 73(7) of the Correctional Services
Act,
37
the provision empowers the National Commissioner of Correctional
Services to convert her sentence of imprisonment to correctional
supervision after she has served one sixth of her sentence. With
good behaviour, Mrs S would have to serve only ten months
before
she becomes eligible for release. As the Supreme Court of Appeal
observed, in dismissing Mrs S’s application for
leave to
appeal, the sentence “is in line with sentences imposed
generally for similar offences”.
38
That Court considered that there was nothing in the circumstances
of the matter to justify interference with the sentence the
Regional Court had imposed.
However,
after the trial court sentenced Mrs S, this Court delivered
judgment in
S v M
.
39
There a mother, a single parent
40
who was “almost totally responsible for the care and
upbringing” of her young children,
41
had been convicted of an infraction similar to Mrs S’s. Like
Mrs S she was a repeat offender. She was spared prison because
this
Court found that the sentencing court had failed to give sufficient
independent and informed attention to the impact on
the children of
sending her to prison,
42
as required by the children’s rights provisions in the Bill
of Rights.
43
A sentence of imprisonment under section 276(1)(i) of the CPA was
reduced to correctional supervision under section 276(1)(h).
Mrs
S too has young children for whom she cares. They are a daughter
who is now eight and a son who is five. They are attached
to her,
and need her care. The reports submitted to the sentencing court by
the probation officer, Ms Viljoen, employed by
the Department for
Correctional Services, and Dr Wessels, engaged by the family,
establish that her going to prison will be
hard on them.
Though
the state cited
S v M
in its written argument before the
Supreme Court of Appeal, that Court did not expressly allude to it
in its reasons. The question
is whether it erred. Does
S v M
require that Mrs S, too, be spared prison? More precisely, does
S
v M
impel intervention to change the sentencing balance the
trial court found? Here the general impact of the decision was much
pressed upon us. The amicus noted that
S v M
“has
captured the imagination of organisations working for children’s
rights and penal reform internationally,”
and that it
receives many requests for information about the decision from law
reform bodies across the world. It urged that
S v M
finds
application on the facts before us. Indeed, counsel for Mrs S urged
that, in view of the similarities between the two
cases, the
Constitution “required” a similar approach in this
case.
S
v M
has revolutionised sentencing in cases where the person
convicted is the primary caregiver of young children. It has
reasserted
the central role of the interests of young children as
an independent consideration in the sentencing process. Yet it
would
be wrong to apply
S v M
in cases that lie beyond its
ambit. The mother in
S v M
was a single parent, and was
almost exclusively burdened with the care of her children. There
was no other parent who could,
without disruption, step in during
her absence to nurture the children, and provide the care they
need, and to which they are
constitutionally entitled.
That
is not the case here. Mrs S is not the children’s sole
caregiver. She is not “almost totally responsible”
44
for their care. Despite heartache and turbulence, well captured in
her evidence and in the social workers’ reports, Mrs
S is
united with the father of her children. He is their co-resident
parent. And he is willing to care for them during her
incarceration. Although he works long hours, there is nothing to
indicate that he will not be able to engage the childcare
resources
needed to ensure that the children are well looked after during his
absence at work. A non-custodial sentence is
therefore not
necessary to ensure their nurturing. And a custodial sentence will
not inappropriately compromise the children’s
best interests.
The sentencing court in my view properly balanced out the
constitutional interests at stake.
In
S
v M
, information about the position of the young children and
their care during their mother’s incarceration was entirely
lacking.
45
Here, by contrast, an informative probation officer report dealing
with the position of the children was available to the sentencing
court, and carefully considered by the sentencing magistrate. A
second report was later commissioned by the family and, after
remittal to the trial court for inclusion in the record, evaluated
together with the other evidence. Two reports were thus
before the
High Court and the Supreme Court of Appeal. Neither suggests that
the fundamental needs or the basic interests of
the children will
be neglected if their mother is incarcerated.
46
After
hearing argument, this Court obtained a further report from a
curator. Nothing in the report of the curator suggests that
the
children will be inadequately cared for should their mother be
incarcerated in accordance with the sentence imposed on
her.
To
mitigate the possibility of the children enduring hardship during
their mother’s absence, it seems to me that this
Court should
order the Department for Correctional Services to ensure that a
social worker visits them regularly, and that
he or she provides
the Department with reports on their well-being during their
mother’s absence.
For
these reasons I conclude that the appeal should fail.
The
following order is made:
Condonation
is granted.
Leave
to appeal is granted.
The
appeal is dismissed.
The
National Commissioner for Correctional Services is directed to
ensure that a social worker in the employ of the Department
for
Correctional Services visits the children of the applicant, Mrs S,
at least once every month during her incarceration,
and submits
reports to the office of the National Commissioner as to whether
the children of the applicant are in need of care
and protection as
envisaged in section 150 of the Children’s Act 38 of 2005
and, if so, to take the steps required by
that provision.
Moseneke
DCJ, Brand AJ,
Froneman J, Jafta J, Mogoeng J, Nkabinde J,
Skweyiya J, and Yacoob J concur in the judgment of Cameron J.
For the Applicant: Advocate A Friedman with I de Vos instructed by
Kriek Van Wyk & Khumalo Inc.
For the Respondent: Advocate JP du P Botha instructed by the
National Director of Public Prosecutions.
For the Amicus Curiae: Ms AM Skelton instructed by the Centre for
Child Law.
1
S
v The State,
Case No 444/09, Supreme Court of Appeal, 31 March
2010, as yet unreported.
2
51
of 1977. Section 309B(5) makes provision for applications for leave
to appeal.
3
S
v M (Centre for Child Law as Amicus Curiae)
[2007] ZACC 18
;
2008 (3) SA 232
(CC
),
where this Court set aside a sentence
of imprisonment and substituted it with a correctional supervision
sentence in terms of
section 276(1)(h) of the Act.
4
Above
n
1
at para
9.
5
Id.
6
Id
at para 12.
7
Section
276(1)(i) provides:
“
Nature of punishments
—
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—
. . .
Imprisonment from which such a person may be placed
under correctional supervision in the discretion of the
Commissioner or
a parole board.”
8
Section
309C(7)(d) provides:
“
Petition procedure
—
(7) Judges considering a petition may, whether they
have acted under subsection (6)(a) or (b) or not—
. . .
(d) in the case of an application for further evidence,
grant or refuse the application, and, if the application is granted
the
judges may, before deciding the application for leave to appeal,
remit the matter to the magistrate’s court concerned in
order
that further evidence may be received in accordance with section
309B(5).”
9
Section
309B(5)(c) provides that:
“
The court granting an
application for further evidence must—
(i) receive that evidence and further evidence rendered
necessary thereby, including evidence in rebuttal called by the
prosecutor
and evidence called by the court; and
(ii) record its findings or views with regard to that
evidence, including the cogency and the sufficiency of the evidence,
and
the demeanour and credibility of any witness.”
10
Above
n 1 at para 6.
11
Id
at para 3.
12
Id
at para 13.
13
Id
at para 14.
14
Id
at
para 15.
15
Id
at para 16.
16
See
S v Mercer
[2003]
ZACC 22
;
2004 (2) SA 598
(CC);
2004 (2) BCLR 109
(CC) at para 4;
Head of Department, Department of
Education Limpopo Province v Settlers Agricultural High School and
Others
[2003] ZACC 15
;
2003 (11) BCLR
1212
(CC) at para 11; and
Brummer v
Gorfil Brothers Investments (Pty) Ltd and Others
[2000]
ZACC 3
;
2000 (2) SA 837
(CC);
2000 (5) BCLR 465
(CC) at para 3.
17
Van
Wyk v Unitas Hospital and Another (Open Democracy Advice Centre as
Amicus Curiae)
[2007] ZACC 24
;
2008
(2) SA 472
(CC);
2008 (4) BCLR 442
(CC) at para 20.
18
Section
28 1(b) and (2) provides:
“
Children
—
Every child has the right—
. . .
(b) to family care or parental care, or to appropriate
alternative care when removed from the family environment;
. . . .
A child’s best interests are of paramount
importance in every matter concerning the child.”
19
Armbruster
and Another v Minister of Finance and Others
[2007] ZACC 17
;
2007 (6) SA 550
(CC);
2007 (12) BCLR 1283
(CC) at
para 24;
Radio Pretoria v
Chairperson, Independent Communications Authority of South Africa,
and Another
[2004] ZACC 24
;
2005
(4) SA 319
(CC);
2005 (3) BCLR 231
(CC) at para 19
; and
S
v Boesak
[2000] ZACC 25
;
2001 (1) SA 912
(CC);
2001 (1) BCLR 36
(CC) at paras 10-2.
20
Above
n 3 at paras 12-5.
21
Id
at para 17.
22
Id
at para 38, quoting from
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.
23
Id
at para 36.
24
Above
n 3 at para 33.
25
Above
n
3
at para 36.
26
Above
n
3
at paras 38-9.
These were
stated to be (i)
maintaining the integrity of
family care and (ii) the duty on the State to punish criminal
misconduct.
27
Above
note
3
at para 35.
28
Section
9(1) provides: “Everyone is equal before the law and has the
right to equal protection and benefit of the law.”
29
Above
n 3 at para 28.
30
Section
28(1)(d) provides: “Every child has the right-to be protected
from maltreatment, neglect, abuse or degradation.”
31
Saayman
v S
(CA&R 82 / 07)
[2008] JOL
22778
(E) (delivered on 7 December 2008) unreported. In this case,
the appellant was a repeat offender and was convicted of six counts
of fraud and sentenced to two years imprisonment suspended for five
years; it was held by the appeal court that the regional
magistrate
missed the opportunity of imposing a conditional suspension which
was compatible with restorative justice. See also
S
v Scheepers
2006 (1) SACR 72
(SCA);
S v Flanagan
1995 (1) SASV 13 (A); and
S v R
1993 (1) SASV 209 (A).
32
Above
n 3 at paras 74-7.
33
Above
n
3
at para 61.
34
51
of 1977.
35
Section
276(1)(i) provides:
“
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—
. . . .
imprisonment from which such a person may be placed
under correctional supervision in the discretion of the
Commissioner or
a parole board.”
36
See
S v Scheepers
2006 (1) SACR 72
(SCA) at para 12.
37
111
of 1998. Section 73(7) provides:
“
(a) A person sentenced to incarceration under
section 276(1)(i) of the Criminal Procedure Act, must serve at least
one sixth of
his or her sentence before being considered for
placement under correctional supervision, unless the court has
directed otherwise,
but if more than one sentence has been imposed
under section 276(1)(i) of the said Act, the person may not be
placed under correctional
supervision for a period exceeding five
years.
(b) If a person has been sentenced to incarceration
under section 276(1)(i) of the Criminal Procedure Act, and to
incarceration
for a period not exceeding five years as an
alternative to a fine the person must serve at least one sixth of
the effective sentences
before being considered for placement under
correctional supervision, unless the court has directed otherwise.
(c) If a person has been sentenced to incarceration
for—
(i) a definite period under section 276(1)(b) of the
Criminal Procedure Act;
(ii) incarceration under section 276(1)(i) of the said
Act;
a period not exceeding five years as an alternative to
a fine,
the person shall serve at least a quarter of the
effective sentences imposed or the non-parole period, if any,
whichever is the
longer before being considered for placement under
correctional supervision, unless the court has directed otherwise.
(d) A person sentenced to incarceration for a definite
period in terms of section 276(1)(b) of the said Act may not be
placed
under correctional supervision unless such sentence has been
converted into correctional supervision in accordance with section
276A(3) of the said Act.”
38
S
v The State
, Case No 444/09,
Supreme Court of Appeal, 31 March 2010, as yet
unreported,
at para 15.
39
S
v M (Centre for Child Law as Amicus Curiae)
[2007] ZACC 18
;
2008
(3) SA 232
(CC);
2007 (2) SACR 539
(CC). This judgment was delivered
on 26 September 2007.
40
Id
at para 2.
41
Above
n 6 at paras 54 and 67-9.
42
Above
n 6 at paras 46-8.
43
Section
28 of the Constitution states:
“
(1) 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 sections
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.
(2) A child’s best interests are of paramount
importance in every matter concerning the child.
(3) In this section ‘child’ means a person
under the age of 18 years.”
44
See
[59] above.
45
Above
n 6 at para 46.
46
Dr
Wessels finds that “both children are very attached to the
accused and will find it very difficult [
sal baie swaar kry
]
if they were to be separated from her for a long time.” She
notes that Mrs S’s spouse stands by her “and is
determined to support her should she have to undergo imprisonment”
and that he appreciates that the “responsibility
of the
children’s nurturance is very great and is uncertain whether
he will be able to undertake it alone.” (My translation.)