The applicant, Mrs S, a 33-year-old married mother of two minor children with serious health conditions, pleaded guilty in the Regional Court to forgery, uttering and fraud arising from falsifying an insurance valuation certificate and lodging a fraudulent claim with a potential loss of R42 000. She had a previous fraud conviction. The Regional Court imposed a partly suspended custodial sentence, including five years’ imprisonment with the possibility of correctional supervision. Evidence before the sentencing court included a probation officer’s report suggesting alternative family care by the children’s father and grandmother, and later a social worker’s report portraying Mrs S as a primary caregiver. Appeals to the High Court and Supreme Court of Appeal against sentence were refused. Mrs S then approached the Constitutional Court, arguing that the lower courts failed to properly consider the best interests of her children as required by section 28 of the Constitution and the principles laid down in S v M.
Leave to appeal was granted; the custodial sentence was set aside and the matter was remitted for reconsideration of sentence in accordance with section 28 of the Constitution and the principles in S v M.
This case reinforces and develops the Constitutional Court’s jurisprudence on the rights of children in sentencing matters, confirming that courts must actively and rigorously apply the S v M guidelines. It underscores that a formal or superficial reference to alternative care is insufficient, and that sentencing courts bear a constitutional duty to investigate the real impact of imprisonment on children.