Sentencing primary caregivers in South Africa: the role of the child’s best interests

Abstract In 2007, the Constitutional Court ruled in S v M that the best interests of the child should be taken into consideration when sentencing primary caregivers. This judgment is in line with s 28 of the Constitution of the Republic of South Africa, 1996, art 3(1) of the UN Convention on the Rights of the Child, and art 30(1) of the African Charter on the Rights and Welfare of the Child. The guidelines developed by the Constitutional Court are considered to be a ‘best practice’ relevant to countries introducing or debating upon a similar obligation within their domestic jurisdiction. Through a systematic content analysis of sentencing judgments concerning (potential) primary caregivers, the interpretation and application of the child’s best interests in this context are examined. The analysis shows that different interpretations and approaches concern different aspects of the guidelines, including their material scope, the elements to be taken into consideration, the alternative care for the child during the imprisonment of the primary caregiver, and how judges inform themselves on this matter in individual cases. The article concludes with recommendations to address these difficulties and inconsistencies.