CCT63/10

[2011] ZACC 7

2011 (2) SACR 88 (CC)

2011 (7) BCLR 740 (CC)

Cameron J Majority judgment

Khampepe J separate judgment

9 November 2010

29 March 2011

http://hdl.handle.net/20.500.12144/3621

Application for leave to appeal against the decision of the Supreme Court of Appeal: S v The State, Case No 444/09, Supreme Court of Appeal, 31 March 2010, as yet unreported. The SCA had dismissed, with reasons, 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).

Application for leave to appeal against an imprisonment sentence of a Regional Court. It concerns the application of section 28 of the Constitution which deals with the paramountcy principle of the best interests of children. In addition, it concerns the reach and applicability of a judgment of this Court in S v M whereby an imprisonment sentence against the applicant in that case was set aside as regards to section 28 of the Constitution. The Court found that this case is distinguishable from S v M as in the instant case, the applicant's husband is available to care for the minor children. The Court therefore, dismissed the application for leave to appeal and held that the sentencing court, when imposing an imprisonment sentence against the applicant, properly balanced the best interests of the children in line with the Constitution. Khampepe J dissented, and held that the incarceration of the applicant will negatively affect the children and that there was a range of possible sentencing options to be considered. Majority: Cameron J (Moseneke DCJ, Brand AJ, Froneman J, Jafta J, Mogoeng J, Nkabinde J, Skweyiya J and Yacoob J concurring). Dissent: Khampepe J.