Moseneke DCJ, Madala J, Mokgoro J, Ngcobo J, O'Regan J, Nkabinde J, Sachs J, Skweyiya J, van der Westhuizen J and Navsa AJ
Case opinions
When a court passes a criminal sentence on the primary caregiver of a child, section 28(2) of the Constitution, read with section 28(1)(b), obligates the court to consider the impact of the sentence on the child.
Decision by
Sachs J (Moseneke, Mokgoro, Ngcobo, O'Regan, Skweyiya and van der Westhuizen concurring)
Concur/dissent
Madala J (Nkabinde and Navsa concurring)
Keywords
Best interests of the child
children's rights
criminal sentencing
right to family care
section 28 of the Constitution
S v M is a 2007 decision of the Constitutional Court of South Africa with import for children's rights and criminal sentencing. The court held unanimously that the best interests of the child must be considered whenever a child's primary caregiver is handed a criminal sentence. This obligation arises from section 28(2) of the Constitution, which enshrines the paramountcy of the best interests of the child, read with section 28(1)(b) of the Constitution, which enshrines every children's right to family care or appropriate alternative care.
The court's majority judgment was written by Justice Albie Sachs, and the full bench agreed with his exposition of section 28. The majority used this framework to overturn a prison sentence handed to a single mother, instead sentencing her to a period of non-custodial correctional supervision. However, a three-member minority, represented in a minority opinion by Justice Tholie Madala, differed from the majority in its evaluation of the facts of the case and would not have reduced the mother's sentence in this instance.
SvM is a 2007 decision of the Constitutional Court of South Africa with import for children's rights and criminal sentencing. The court held unanimously...
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