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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.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.

The Court denied her leave to appeal against this sentence to the Supreme Court of Appeal.The applicant, the curator and the amicus all contended that the effect of section 28 of the Constitution was to require sentencing courts, as a matter of general practice, to give specific and independent consideration to the impact that a custodial sentence in respect of a primary caregiver could have on minor children.On the facts of this case they argued that due consideration of the interests of M’s children required that an appropriately stringent correctional supervision order should be imposed in place of a custodial sentence.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.