SENTENCE – PRIMARY CARE GIVER

S v MALISWANE AND ANOTHER 2017 (1) SACR 26 (ECG)

Sentence — Factors to be taken into account — Where convicted person primary caregiver of minor child — Imperative that investigation be undertaken into fate of child before sentence of primary caregiver to incarceration.

 

The two appellants were convicted in a magistrates’ court of theft of goods from supermarkets, respectively of groceries and shoes. They were both sentenced to 36 months’ imprisonment. Despite the fact that they were convicted (in the same case) of theft from different shops on the same day, the magistrate assumed that they were part of a syndicate and felt that it was necessary to make an example of them, despite there being no evidence before the court for this. Both appellants were young mothers who had young children who relied upon them. The magistrate effectively brushed aside their request for a probation officer’s report and proceeded to sentence them.

Held, that, in circumstances where the court a quo was dismissive of the interests of the children, whose primary caregivers were being sent to prison, and when there had been no investigation as to the care the children would receive in their absence, the magistrate had misdirected herself, and the sentences imposed accordingly fell to be set aside. As the sentences would probably have already been served, there was no point in referring the matter back to the magistrate, and instead a sentence of 12 months’ imprisonment was imposed in respect of each appellant.

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