| S v M | |
|---|---|
 | |
| Court | Constitutional Court of South Africa |
| Full case name | M v the State |
| Decided | 26 September 2007 |
| Docket nos. | CCT 53/06 |
| Citations | [2007] ZACC 18; 2008 (3) SA 232 (CC); 2007 (12) BCLR 1312 (CC); 2007 (2) SACR 539 (CC) |
| Court membership | |
| Judges sitting | 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 | |
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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.