S v S (CCT 63/10) [2011] ZACC 7; 2011 (2) SACR 88 (CC); 2011 (7) BCLR 740 (CC) (29 March 2011)

S v S (CCT 63/10) [2011] ZACC 7; 2011 (2) SACR 88 (CC); 2011 (7) BCLR 740 (CC) (29 March 2011)

The Constitutional Court considered whether the sentencing courts properly applied the child-centred approach mandated by section 28 of the Constitution and the precedent in S v M. The majority found that, although the applicant was a primary caregiver and her incarceration would adversely affect her children, the presence of her husband as a co-resident parent distinguished the case from S v M. The majority held that the sentencing court had balanced the constitutional interests and that the available reports did not establish that the children would be inadequately cared for during the applicant's incarceration. The appeal was dismissed, and the custodial sentence imposed by the...

Citation
[2011] ZACC 7
Parties
Applicant: S; Respondent: The State; Appellant: Centre for Child Law
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
29 March 2011
Case Number
CCT 63/10
Procedural Posture
Leave to Appeal / Constitutional Court Judgment Following Dismissal of Leave to Appeal by Supreme Court of Appeal
Outcome
Appeal dismissed. The sentence of imprisonment imposed by the Regional Court stands. Condonation and leave to appeal granted.
Judges
Khampepe, Cameron, Moseneke, Brand, Froneman, Jafta, Mogoeng, Nkabinde, Skweyiya, Yacoob
Legal Topics
Sentencing of Primary Caregivers, Best Interests of the Child, Section 28 Constitution, Correctional Supervision, Recidivism, Custodial Vs Non Custodial Sentence
Criminal Law Constitutional Law Family and Children Sentencing of Primary Caregivers Best Interests of the Child Section 28 Constitution Correctional Supervision Recidivism +1 more

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Parties

S

Applicant

The State

Respondent

Centre for Child Law

Appellant

Procedural Posture

Leave to Appeal / Constitutional Court Judgment Following Dismissal of Leave to Appeal by Supreme Court of Appeal

Legal Issues

  1. 1 Did the sentencing courts properly consider the best interests of the applicant's minor children under section 28 of the Constitution when imposing sentence?
  2. 2 Was the applicant a primary caregiver, and did the courts conduct the required inquiry into alternative care for her children?
  3. 3 Should the custodial sentence be set aside in favour of correctional supervision given the impact on the children?

Ratio Decidendi

The Constitutional Court considered whether the sentencing courts properly applied the child-centred approach mandated by section 28 of the Constitution and the precedent in S v M. The majority found that, although the applicant was a primary caregiver and her incarceration would adversely affect her children, the presence of her husband as a co-resident parent distinguished the case from S v M. The majority held that the sentencing court had balanced the constitutional interests and that the available reports did not establish that the children would be inadequately cared for during the applicant's incarceration. The appeal was dismissed, and the custodial sentence imposed by the...

Court Disposition

Appeal dismissed. The sentence of imprisonment imposed by the Regional Court stands. Condonation and leave to appeal granted.

Orders

  • Condonation for late filing of application and record is granted.
  • Leave to appeal is granted.