Care backdating

This Court refused the first part of her application, namely, that she be given leave to appeal on the ground that the Supreme Court of Appeal had given no reasons for refusing to hear oral argument.It did, however, enrol her application for leave to appeal against the sentence. If it was to hold that these duties were not observed, what order should this Court make, if any?The present case calls upon us to consider the situation where it is not a juvenile offender facing sentencing but the primary caregiver of a child.

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The elements of the triad contain an equilibrium and a tension.

A court should, when determining sentence, strive to accomplish and arrive at a judicious counterbalance between these elements in order to ensure that one element is not unduly accentuated at the expense of and to the exclusion of the others.

To this the quality of mercy, as distinct from mere sympathy for the offender, had to be added.

Finally, he observed, it was necessary to take account of the fact that the traditional aims of punishment had been transformed by the Constitution.

The extensive information and thoughtful arguments advanced by all the above-mentioned protagonists in this matter fully meet this standard.

Aided by this most helpful material I respond in sequence to the questions as formulated in the directions. What are the duties of the sentencing court in the light of section 28(2) of the Constitution and any relevant statutory provisions when the person being sentenced is the primary caregiver of minor children?More particularly, does section 28 of the Constitution add an extra element to the responsibilities of a sentencing court over and above those imposed by the Zinn triad, and if so, how should these responsibilities be fulfilled?Section 28(2) of the Constitution provides that “[a] child’s best interests are of paramount importance in every matter concerning the child.” South African courts have long had experience in applying the “best interests” principle in matters such as custody or maintenance.[The] wide formulation [of section 28(2)] is ostensibly so all-embracing that the interests of the child would override all other legitimate interests of parents, siblings and third parties.The report indicated that M would be an appropriate candidate for a correctional supervision order.Despite strong pleas from her attorney that she not be sent to prison the Court sentenced her to four years’ direct imprisonment.In 1996 she was convicted of fraud and sentenced to a fine coupled with a term of imprisonment that was suspended for five years.

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