CORRECTIONAL SUPERVISION FOR MURDER – CHILD’S FUNDAMENTAL RIGHTS

S v N 2016 (2) SACR 436 (KZP)

Murder — Sentence — Correctional supervision — Mother of two minor children, one of whom was 2 years old, convicted of murdering man with whom she had relationship — Substantial mitigating circumstances including that she had acted with diminished responsibility — Court obliged to bear in mind best interests of child — Not advisable for child to be incarcerated with mother in correctional facility, even where provision made for young children — Such incarceration also in conflict with art 30 of African Charter on Rights and Welfare of Child — Correctional supervision of five years’ imprisonment in terms of s 276(1)(i) of Criminal Procedure Act 51 of 1977 imposed.

The accused, a 32-year-old mother of two children, respectively aged 2 and 16, was convicted of murder in that she had shot and killed a man with whom she had been having a relationship. In the period 2009 – 2013 she had been hospitalised at least five times for depression. At the time of the killing she had been in an agitated state, suffering from rejection by the deceased. On an earlier occasion during a domestic-violence incident she was deprived of her firearm. This was later returned to her despite her condition.

The accused was a first offender who had grown up in difficult circumstances, losing both parents in the course of two years before she reached the age of 10. At the age of 13 she had to assume responsibility for her younger siblings and fell pregnant at the age of 16. Despite these difficulties she had managed to obtain her matric and completed a secretarial course and secured employment with SAPS. Her older child was already being cared for by a relative and the accused told the court that the younger child would be looked after by her cousin if she were sentenced to a term of imprisonment. It also appeared that the Westville Female Correctional Centre had a facility catering for the needs of mothers with young children who could be with their mothers during their period of incarceration.

The court held, however, that it was of paramount importance to take into account the best interests of the affected child and best efforts had to be made to avoid, where possible, any breakdown of family life or parental care that might put children at increased risk. In the present matter it would not be suitable for the child to be incarcerated with its mother. This would also be in conflict with art 30 of the African Charter on the Rights and Welfare of the Child (ACRWC) in terms of which the state was to ‘provide special treatment to . . . mothers of infants and young children who had been accused or found guilty of breaking the law’. The ACRWC had been ratified by South Africa and the court was therefore obliged to comply therewith. In the circumstances an appropriate sentence was one of five years’ imprisonment in terms of s 276(1)(i) of the Criminal Procedure Act 51 of 1977.

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