About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Constitutional Court
SAFLII
>>
Databases
>>
South Africa: Constitutional Court
>>
1995
>>
[1995] ZACC 6
|
|
S v Williams and Others (CCT20/94) [1995] ZACC 6; 1995 (3) SA 632 ; 1995 (7) BCLR 861 (CC) (9 June 1995)
IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CASE NO: CCT/20/94
In the matter of :
THE STATE
versus
HENRY
WILLIAMS
JONATHAN KOOPMAN
TOMMY MAMPA
GARETH PAPIER
JACOBUS
GOLIATH
SAMUEL WITBOOI
HEARD ON 24 MARCH 1995
DELIVERED ON 9 JUNE
1995
JUDGMENT
LANGA, J:
[1] This matter has been referred to this Court by the Full Bench of the Cape of
Good Hope Provincial Division of the Supreme Court
(Conradie, Scott and Farlam
JJ). It is a consolidation of five different cases in which six juveniles were
convicted by different
magistrates and sentenced to receive a "moderate
correction" of a number of strokes with a light cane. The issue is whether the
sentence of juvenile whipping, pursuant to the provisions of section 294 of the
Criminal Procedure Act,
[1]
is
consistent with the provisions of the
Constitution.
[2]
[2] Mr. Bozalek appeared with Mr. Hathorn as
amicus curiae
on behalf of
the accused; they were assisted by the Legal Resources Centre's Cape Town
office. We are indebted to both Counsel and
to the Legal Resources Centre.
Before the date of the hearing, the President of this Court was advised by the
Attorney General of
the Cape of Good Hope Provincial Division that he wished to
withdraw the argument which had been filed on his behalf (and on behalf
of the
State) as he shared the view that the provisions relating to corporal punishment
in section 294 of the Act were unconstitutional.
Mr. Slabbert, who is a member
of the Attorney General's staff, however agreed to present the opposing argument
as
amicus curiae
in accordance with the written argument which had been
filed on behalf of the State. We place on record our appreciation to him for
having undertaken this task.
[3] Purely for the sake of convenience, I shall refer to the accused as the
applicants and to the position adopted by Mr. Slabbert
in his argument as that
of the State.
[4] Although each of the cases has a history of its own, much is in common. The
applicants are all males and they are all juveniles.
Three of them, namely,
Williams, Koopman and Mampa were each sentenced to suspended prison sentences in
addition to the juvenile
whipping. The remaining three were sentenced to
juvenile whipping only. All the trials had commenced before 27 April 1994; each
of the sentences was passed after 27 April 1994.
[5] The Provincial Division became seized of the matters in two ways: all five
cases were subject to automatic review in terms of
section 302(1)(a) of the Act
because of the terms of imprisonment, albeit suspended, imposed on the
applicants themselves or on their
fellow accused who do not feature in the
present proceedings. In addition to this, Mr. A.P. Dippenaar who presided over
the case
involving Williams, requested that the sentence of strokes be subjected
to special review in terms of section 304(4) of the Act.
He took this step
because he doubted whether juvenile whipping was a permissible punishment in the
light of the provisions of the
Constitution and in view of the decision in
Ex
Parte Attorney-General, Namibia: In re Corporal Punishment By Organs of
State.
[3]
[6] Whether, as a matter of strict law, the Magistrate was correct in deferring
the execution of the whipping
[4]
, is
not in issue. He deserves to be commended for treating as a matter of priority
an issue involving fundamental human rights and
in particular, the application
of the provisions of Chapter 3 of the Constitution. He indeed went further than
merely taking the
initiative to submit the matter for special
review.
[7] A sentence of juvenile whipping in terms of section 294 of the Act is not
normally reviewable; the whipping is therefore administered
immediately after
sentence is passed. There must have been countless instances in the past where
courts sitting on appeal or review
have had to set aside sentences imposed by
trial courts because of irregularities; where those offenders had been sentenced
to a
juvenile whipping, the punishment would almost invariably have been carried
out already.
[5]
Once a whipping has
been administered, as is the case with five of the applicants in this matter,
any decision which this Court
comes to, will make no practical difference to
them for purposes of the present proceedings. Mindful of this, Mr Dippenaar
ordered
that the sentence of five strokes imposed by him on the applicant
Williams should not be carried out until the issue, whether or
not the
punishment was consistent with the Constitution, had been finally decided by the
appropriate court. The concern he displayed
is to be
welcomed.
[8] Courts do have a role to play in the promotion and development of a new
culture "founded on the recognition of human
rights,"
[6]
in particular, with regard
to those rights which are enshrined in the Constitution. It is a role which
demands that a court should
be particularly sensitive to the impact which the
exercise of judicial functions may have on the rights of individuals who appear
before them; vigilance is an integral component of this role, for it is
incumbent on structures set up to administer justice to ensure
that as far as
possible, these rights, particularly of the weakest and the most vulnerable, are
defended and not ignored. One of
the implications of the new order is that old
rules and practices can no longer be taken for granted; they must be subjected
to constant
re-assessment to bring them into line with the provisions of the
Constitution.
[9] It was no doubt because of these considerations that Conradie J advised
magistrates for their guidance that, pending the decision
of this Court, it
would be undesirable for sentences of whipping, in terms of section 294 of the
Act, to be imposed and that where
such sentence had in fact been imposed, it
might not be appropriate for it to be carried out until a ruling from the
Constitutional
Court had been obtained.
[10] When the matter was argued before this Court, it was common cause between
the applicants and the State that the provisions in
our law which authorise
corporal punishment for adults are inconsistent with the Constitution. This
consensus of course does not
remove those provisions from the statute book; they
have not been set aside by a competent body or authority and the relevant
legislation
has not been repealed. The agreement is, however, an
acknowledgement of the effect which the provisions of the Constitution have
in
forcing a re-assessment of the laws that govern us against the values expressed
in the Constitution. The effect is to demarcate
the parameters of civilised
behaviour, at least at the level of the administration of justice.
[11] Apart from provisions which permit juvenile whipping, the law presently
allows whipping as a punishment which may be imposed
upon adult males between
the ages of 21 and 30 years. This is notwithstanding the fact that over the
last thirty years at least,
South African jurisprudence has been experiencing a
growing unanimity in judicial condemnation of corporal punishment for adults.
Criticism of the practice has been consistent and emphatic, it being
characterised as "punishment of a particularly severe kind ...
brutal in its
nature ... a severe assault upon not only the person of the recipient but upon
his dignity as a human being";
[7]
"a very severe and humiliating form of
punishment";
[8]
"`n uiterste
strafvorm";
[9]
"`n erg vernederende en
fisies baie pynlike vorm van
bestraffing";
[10]
"cruel and inhuman
punishment.”
[11]
This tone of
condemnation is to be found, not only in many decisions in this
country,
[12]
but also in other
jurisdictions.
[13]
[12] If adult whipping were to be abolished, it would simply be an endorsement
by our criminal justice system of a world-wide trend
to move away from whipping
as a punishment. As far back as 1947, the Lansdown Commission of Enquiry, while
recommending the retention
of corporal punishment in limited form in South
Africa, made the point that most civilized countries in the world had abandoned
corporal
punishment as a method of dealing with crime. The report of the
Viljoen Commission, tabled in Parliament in January 1977, also endorsed
the view
that whipping for adults was a brutal assault, not only on the person of the
recipient, but also on his dignity as a human
being.
[13] The provisions being challenged, however, relate to juvenile whipping. The
State was at pains to point out that there are differences
between adult and
juvenile whipping. The contention was that corporal punishment was not in
itself objectionable
,
particularly when restricted to male youths; what
rendered adult whipping constitutionally unacceptable was the manner in which it
was executed. The nub of the enquiry is, however, not the legality or otherwise
of adult whipping or how different it is from juvenile
whipping. The issue is
whether juvenile whipping, on its own merits or demerits, is consistent with the
Constitution.
[14] The Act contains a number of related provisions which deal with the
infliction of corporal
punishment.
[14]
In so far as
juveniles are concerned, no minimum age is fixed in the Act although practice
and judicial decisions would seem to
have fixed the lower age limit at 9
years.
[15]
A whipping may not be
imposed "if it is proved that the existence of some psychoneurotic or
psychopathic condition contributed towards
the commission of the
offence."
[16]
Section 294(1)(a)
provides for whipping to be carried out "by such person and in such place and
with such instrument as the court
may determine." We were informed that, in
practice, a cane is used, but it is significant that the Act leaves this to the
discretion
of the magistrate.
[17]
The maximum number of strokes that may be imposed at any one time is
seven.
[18]
Juvenile whipping is
inflicted over the buttocks, which must be covered with normal attire
[19]
and a parent or guardian may
be present.
[20]
No whipping may be
carried out unless a district surgeon or an assistant district surgeon has
certified that the juvenile "is in
a fit state of health to undergo the
whipping."
[21]
Juveniles over the
age of 17 years may be sentenced to a whipping in addition to any other
sentence, provided that where a sentence
of imprisonment is imposed, the whole
period must be suspended.
[22]
[15] The applicants sought to impugn section 294 of the Act on a number of
grounds. It was contended that this provision violated
sections 8, 10, 11, and
30 of the Constitution. These provisions are contained in Chapter 3, which is
generally referred to as the
Chapter on Fundamental Rights.
[16] Section 8(1) of the Constitution guarantees to each person "the right to
equality and to equal protection of the law." Section
8(2) prohibits unfair
discrimination on grounds which include race, gender, sex, colour, and age;
according to section 8(4), "
[p]rima facie
proof of discrimination on any
of the grounds specified ... shall be presumed to be sufficient proof of
unfair discrimination
... until the contrary is established." Applicants
argued that the provisions of section 294 of the Act discriminated unfairly
against male juveniles on grounds of age and sex and, in the context of South
Africa's unjust and unequal past, their application
was susceptible to racial
bias.
[17] Section 10, for its part, guarantees to every person " the right to respect
for and protection of his or her dignity." The
proposition advanced was that
the circumstances under which juvenile whipping is administered, including the
fact that it involves
the intentional infliction of physical pain on the
juvenile by a stranger at the instance of the State, are incompatible with
respect
for and the protection of the dignity of the person being punished. It
was contended that this was a violation of the dignity of
both the minor as well
as that of the person administering the whipping.
[18] The provisions of section 30 of the Constitution are designed to protect
children. It was argued that inasmuch as the Constitution
recognises the
vulnerability of children as a group and sets out to protect them, juvenile
whipping infringed their right to security
and not to be subjected to
abuse.
[19] Much of applicants' argument was, understandably enough, devoted to the
alleged violation of section 11(2) of the Constitution.
As the heading
indicates, this section deals with
"[f]reedom and security of
the person"
and the subsection provides that "[n]o person shall be subject
to torture of any kind, whether physical, mental or emotional, nor
shall any
person be subject to cruel, inhuman or degrading treatment or punishment." This
is the only provision, among those relied
upon by the applicants, that expressly
refers to
punishment.
I propose to deal with the impact, if any, of
sections 10 and 11(2) of the Constitution on the conduct which is prescribed by
section
294 of the Act.
[20] It is clear that when the words of section 11(2) of the Constitution are
read disjunctively, as they should
be,
[23]
the provision refers to
seven distinct modes of conduct, namely: torture; cruel treatment; inhuman
treatment; degrading treatment;
cruel punishment; inhuman punishment and
degrading punishment.
[21] In common with many of the rights entrenched in the Constitution, the
wording of this section conforms to a large extent with
most international human
rights instruments.
[24]
Generally,
the right is guaranteed in absolute, non-derogable and unqualified terms;
justification in those instances is not
possible.
[25]
[22] The interpretation of the concepts contained in section 11(2) of the
Constitution involves the making of a value judgment which
“requires
objectively to be articulated and identified, regard being had to the
contemporary norms, aspirations, expectations
and sensitivities of the ...
people as expressed in its national institutions and its Constitution, and
further having regard to
the emerging consensus of values in the civilised
international community ...
“
[26]
[23] While our ultimate definition of these concepts must necessarily reflect
our own experience and contemporary circumstances as
the South African
community, there is no disputing that valuable insights may be gained from the
manner in which the concepts are
dealt with in public international law as well
as in foreign case law.
[24] The Oxford English Dictionary defines 'cruel' as "causing or inflicting
pain without pity," 'inhuman' as "destitute of natural
kindness or pity, brutal,
unfeeling, savage, barbarous" and 'degrading' as "lowering in character or
quality, moral or intellectual
debasement." In South African case law,
definitions of ‘cruel,’ with regard to treatment or punishment are
rare. The
phrase "cruel treatment" has been used in the context of abuse of
animals and has been described variously
as "wilfully caus[ing] pain
without justification ... intention of causing it unnecessary
suffering;"
[27]
"deliberate act
causing substantial pain and not reasonably necessary in all the
circumstances."
[28]
[25] Whether it is necessary to split the words of the phrase and interpret the
concepts individually is a matter which would largely
depend on the nature of
the conduct sought to be impugned. It may well be that in a given case,
conduct that is degrading may not
be inhuman or cruel. On the other hand, other
conduct may be all three. It was suggested to us that a useful approach might be
to
grade the concepts on a sliding scale of suffering inflicted,
torture
occupying the extreme position, followed by
cruel,
inhuman
and
degrading
, in that order.
[26] International forums offer very little guidance with regard to the meaning
to be given to each word, individually. The tendency
has been to deal with
them as phrases or a combination of words. Thus when the United Nations Human
Rights Committee (UNHRC) was
called upon to interpret the corresponding section
in the International Covenant on Civil and Political Rights (ICCPR), it did not
consider “it necessary to draw up a list of prohibited acts or to
establish sharp distinctions between the different kinds
of punishment or
treatment; the distinctions depend on the nature, purpose and severity of the
treatment applied.”
[29]
According to the UNHRC, the assessment of what constitutes inhuman or degrading
treatment depends on all the circumstances of the
case, such as the duration and
manner of the treatment, its physical or mental effects as well as the sex, age
and state of health
of the
victim.
[30]
[27] Article 3 of the European Convention for the Protection of Human Rights and
Fundamental Freedoms (European Convention), has
been interpreted by
distinguishing the concepts primarily by the degree of suffering
inflicted.
[31]
The European
Commission of Human Rights (European Commission) described
inhuman
treatment
as that which "causes severe suffering, mental or physical,
which in the particular situation is unjustifiable" and
torture
as "an
aggravated form of inhuman treatment.”
[32]
The European Court of Human
Rights (European Court) found the difference between
torture
and
inhuman treatment
in the fact that the former attaches “a special
stigma to deliberate inhuman treatment causing very serious and cruel
suffering."
[33]
The Court also
categorised
degrading
conduct as that which aroused in its victims
feelings of fear, anguish and inferiority leading to humiliation and debasement
and
possible breaking of their physical or moral
resistance.
[34]
The same Court
distinguished between
inhuman
and
degrading
punishment in
Tyrer v United Kingdom
,
[35]
and held that suffering had to reach a certain level before punishment could be
characterised as
inhuman.
In a case where a juvenile had been sentenced
to three strokes of the birch, the Court found that although that level had not
been
reached, the birching of the minor nevertheless amounted to
degrading
punishment.
[28] The Eighth Amendment to the Constitution of the United States of America
(Eighth Amendment) as well as Article 12 of the Canadian
Charter of Rights and
Freedoms (Canadian Charter) prohibit "cruel and unusual punishment." In
Furman v Georgia,
[36]
Brennan
J postulated criteria in the assessment of what amounts to cruel and unusual
punishment. He pointed out that punishment
does not become "cruel and unusual"
merely because of the pain inflicted. The true significance lay in the fact
that members of
the human race are treated:
"... as nonhumans, as objects to be toyed with and discarded ... [and that this
is] ... thus inconsistent with the fundamental premise
of the Clause that even
the vilest criminal remains a human being possessed of common human
dignity."
[37]
[29] Although some of the views expressed in
Furman v Georgia
were
qualified in the subsequent case of
Gregg v
Georgia,
[38]
Stewart J in the
latter case affirmed that the basic concept underlying the Eighth Amendment "is
the dignity of
man."
[39]
[30] The framework of Canadian rights legislation is not much different from
ours and section 1 of the Canadian Charter plays a role
not very dissimilar to
that of section 33(1) of the Constitution. The Canadian Supreme Court has
interpreted the concept "cruel and
unusual punishment" as a
"compendious
expression of a norm" to which the relevant test was "whether the punishment
prescribed is so excessive as to outrage
the standards of
decency."
[40]
Factors to be taken
into account in the assessment of the punishment included its effect, which must
not be grossly disproportionate,
the gravity of the offence, the personal
characteristics of the offender and the particular circumstances of the case.
According
to Dickson CJ and Lamer J:
" ... some punishments or treatments will always be grossly disproportionate and
will always outrage our standards of decency: for
example, the infliction of
corporal punishment, such as the lash, irrespective of the number of lashes
imposed ...
"
[41]
[31] The decisions of the Supreme Courts of Namibia and of Zimbabwe are of
special significance. Not only are these countries geographic
neighbours, but
South Africa shares with them the same English colonial experience which has had
a deep influence on our law; we
of course also share the Roman-Dutch legal
tradition. Unlike our Constitution, the Namibian Constitution does not have a
general
limitation clause. Article 22 however specifies how limitations,
whether they are built-in or are imposed by other laws, are to
be employed. In
Ex Parte Attorney-General, Namibia,
Mahomed AJA had no difficulty in
arriving at the conclusion that the infliction of corporal punishment, whether
on adults or juveniles,
was inconsistent with article 8 of the Namibian
Constitution and constituted "inhuman or degrading"
punishment.
[42]
[32] In
S v Ncube; S v Tshuma and S v Ndhlovu
the Zimbabwe Supreme Court,
dealing with the issue of corporal punishment for adults, held that the practice
was inhuman and degrading
in violation of section 15(1) of the Declaration of
Rights of the Zimbabwe Constitution which prohibits "torture or inhuman or
degrading
punishment."
[43]
The same
conclusion was reached with respect to juvenile whipping by the Zimbabwe High
Court in
S v F
.
[44]
Juvenile whipping was held to constitute inhuman and degrading punishment by
the Zimbabwe Supreme Court in
S v
Juvenile.
[45]
Gubbay JA
characterised juvenile whipping as:
" . . . inherently brutal and cruel; for its infliction is attended by acute
physical pain. After all, that is precisely what it
is designed to achieve ...
In short, whipping, which invades the integrity of the human body, is an
antiquated and inhuman punishment
which blocks the way to understanding the
pathology of crime."
[46]
[33] The Court in
Tyrer v United Kingdom
characterised the whipping of a
juvenile thus:
"The very nature of judicial corporal punishment is that it involves one human
being inflicting physical violence on another human
being. Furthermore, it is
institutionalised violence, that is in the present case violence permitted by
the law, ordered by the judicial
authorities of the State and carried out by the
police authorities of the State. Thus, although the applicant did not suffer
any
severe or long-lasting physical effects, his punishment - whereby he was
treated as an object in the power of the authorities - constituted
an assault on
precisely that which is the main purpose of Article 3 to protect, namely a
person's dignity and physical integrity
... The institutionalised character of
this violence is further compounded by the whole aura of official procedure
attending the
punishment and by the fact that those inflicting it were total
strangers to the
offender."
[47]
[34] The circumstances described above are present in any judicial corporal
punishment;
[48]
they are certainly
present in juvenile whipping in terms of section 294 of the Act. They are
consistent with Mahomed AJA's summary,
in
Ex Parte Attorney-General,
Namibia,
[49]
and that of Gubbay
JA in
S v Ncube, S v Tshuma, S v
Ndhlovu
[50]
on the basis of the
objection to corporal punishment.
[35] Whether one speaks of "cruel and unusual punishment" as in the Eighth
Amendment of the United States Constitution and in article
12 of the Canadian
Charter, or "inhuman or degrading punishment" as in the European Covention and
the Constitution of Zimbabwe, or
"cruel, inhuman or degrading punishment" as in
the Universal Declaration of Human Rights, the ICCPR and the Constitution of
Namibia,
the common thread running through the assessment of each phrase is the
identification and acknowledgement of society's concept of
decency and human
dignity.
[36] In the United States, the Eighth Amendment to the Constitution is
interpreted in the light of "contemporary standards of decency."
These
standards, it has been held, are not static but are continually
evolving.
[51]
The relationship
between "contemporary standards of decency" and public opinion is uncertain and
I am not convinced that they are
synonymous. It is clear, as was pointed out
by Chaskalson P in
State v Makwanyane and Mchunu
that public opinion, on
its own, is not determinative of constitutional issues:
"If public opinion were to be decisive there would be no need for constitutional
adjudication. The protection of rights could then
be left to Parliament, which
has a mandate from the public . . . but this would be a return to parliamentary
sovereignty, and a retreat
from the new legal order established by the 1993
Constitution."
[52]
[37] It is not clear to me however that it is necessary to adopt the American
concept of "contemporary standards of decency" or that
it is necessary to give
definitive meaning to that phrase. Our Constitution is different to the
American constitution. Section
35(1) of the Constitution provides expressly
that the rights entrenched in it, including sections 10 and 11(2), shall be
interpreted
in accordance with the values which underlie an open and democratic
society based on freedom and equality. In determining whether
punishment is
cruel, inhuman or degrading within the meaning of our Constitution, the
punishment in question must be assessed in
the light of the values which
underlie the Constitution.
[38] The simple message is that the State must, in imposing punishment, do so in
accordance with certain standards; these will reflect
the values which underpin
the Constitution; in the present context, it means that punishment must respect
human dignity and be consistent
with the provisions of the
Constitution.
[39] There is unmistakably a
growing consensus in the international
community that judicial whipping, involving as it does the deliberate infliction
of physical
pain on the person of the accused, offends society's notions of
decency and is a direct invasion of the right which every person
has to human
dignity. This consensus has found expression through the courts and
legislatures of various countries and through
international instruments. It is
a clear trend which has been established.
[40] Corporal punishment has been abolished in a wide range of countries,
including: the United Kingdom,
[53]
Australia (except in the State of Western
Australia),
[54]
the United States of
America,
[55]
Canada,
[56]
Europe
[57]
and
Mozambique,
[58]
among others. In
Lesotho, restrictions have been imposed by the courts on the whipping of people
over 30 years.
[59]
Although the
Constitution of Botswana contains a provision preserving the application of
judicial corporal punishment in its criminal
justice system, the practice has
been severely criticised by the judiciary. The remarks of Aguda, JA in
S v
Petrus and Another
are apposite to the present enquiry:
"First, it must be recognised that certain types of punishment or treatment are
by their very nature cruel, inhuman or degrading.
Here once more I must cite
with approval what Professor Nwabueze says in his book (
ibid
): 'Any
punishment involving torture, such as the rack, the thumbscrew, the iron boot,
the stretching of limbs, burning alive or at
the stake, crucifixion, breaking on
the wheel, embowelling alive, beheading, public dissection and the like, or
involving mutilation
or a lingering death, or the infliction of acute pain and
suffering, either physical or mental, is inherently inhuman and degrading.'
Under the Botswana Constitution such punishment which is inherently inhuman and
degrading is prohibited . . . notwithstanding the
fact that public sentiments
favour it. Secondly, a punishment which is not inherently inhuman or degrading
may become so by the
very nature or mode of execution, and also notwithstanding
the fact that popular demand may favour
it."
[60]
[41] Great play was made by the State of differences between adult and juvenile
whipping. The point of the argument was that while
it may be difficult to
justify the whipping of adults in constitutional terms, juvenile whipping was no
more reprehensible than other
forms of punishment, since an element of
humiliation and degradation is to be found in most. I did not understand the
State to be
seriously contending that any punishment which involves an element
of humiliation or degradation constituted a breach of section
11(2) of the
Constitution. The argument was rather that judicial whipping was not an
infringement of any of the rights of the juvenile.
[42] In
Tyrer v United Kingdom
the European Court put its finger on the
basis for the distinction between punishment
per se
and punishment which
was prohibited in terms of article 3 of the European Convention: the humiliation
or debasement involved must
attain a particular level and must be other than the
usual, and perhaps inevitable, element of humiliation associated with punishment
in general.
[61]
In
Furman v
Georgia
Brennan J made it quite clear what he found to be particularly
objectionable in this species of punishment:
"...since the discontinuance of flogging as a constitutionally permissible
punishment,
Jackson v Bishop
[1968] USCA8 253
;
404 F2d 571
(CA8) 1968, death remains as the
only punishment that may involve the conscious infliction of physical
pain."
[62]
[43] The fact that there may be other punishments which violate fundamental
rights cannot, in itself, save the specific form of punishment
that has been
challenged from invalidity.
[44] Differences between adult and juvenile whipping have, in my view, little or
no relevance to the enquiry. They are in any event
differences of degree rather
than kind. To the extent that comment is needed on the argument which has been
raised, however, I
am of the view that the differences are far outweighed by the
similarities. There is a small difference in the dimensions of the
instrument
used;
[63]
the adult is stripped
naked and trussed, the strokes being delivered on bare flesh while the
juvenile's strokes are inflicted on
normal attire, without him being tied; there
is no limit to the number of times a juvenile may be sentenced to receive
strokes while
the adult may only be so sentenced twice, and never within a
period of three years of the previous sentence of strokes. Both occur
in a
state institution; the maximum number of strokes that may be imposed is seven in
respect of both. Both involve a physical beating
with a cane wielded by a State
employee, a virtual stranger to the person being punished.
[45] The severity of the pain inflicted is arbitrary, depending as it does
almost entirely on the person administering the whipping.
Although the juvenile
is not trussed, he is as helpless. He has to submit to the beating, his terror
and sensitivity to pain notwithstanding.
Nor is there any solace to be derived
from the fact that there is a prior examination by the district surgeon. The
fact that the
adult is stripped naked merely accentuates the degradation and
humiliation. The whipping of both is, in itself, a severe affront
to their
dignity as human beings. I agree with the
dicta
in
Campbell and
Cosans v United Kingdom
in which Mr Klecker, in a dissenting opinion,
stated:
"Corporal punishment amounts to a total lack of respect for the human being; it
therefore cannot depend on the age of the human being
... The sum total of
adverse effects, whether actual or potential, produced by corporal punishment on
the mental and moral development
of a child is enough, as I see it, to describe
it as degrading within the meaning of Article 3 of the
Convention."
[64]
[46] It was further claimed that age in itself was a redeeming feature; that
while an adult whose character and personality has
already been formed was
likely to be hardened by the infliction of judicial whipping, the position was
the opposite in the case
of a juvenile. The basis for this was the view that as
a juvenile's character was still in the process of formation, he was still
susceptible to correction and advice; corporal punishment might therefore still
have a reformative effect on the young even though
it was accepted that it was
likely to have the opposite effect on the old.
[47] I do not agree. One would have thought that it is precisely because a
juvenile is of a more impressionable and sensitive nature
that he should be
protected from experiences which may cause him to be coarsened and hardened. If
the State, as role model
par excellence,
treats the weakest and the most
vulnerable among us in a manner which diminishes rather than enhances their
self-esteem and human
dignity, the danger increases that their regard for a
culture of decency and respect for the rights of others will be diminished.
As
Brandeis J observes in a dissenting opinion in
Olmstead v United
States
:
"Our Government is the potent, the omni-present teacher. For good or for ill,
it teaches the whole people by its
example."
[65]
[48] The issue of corporal punishment at schools is by no means free of
controversy. The practice has inevitably come in for strong
criticism.
[66]
In
Costello-Roberts v United
Kingdom,
[67]
the European Court
applied the criteria set in
Tyrer v United Kingdom
that, in order for
punishment to be "degrading" and in breach of article 3 of the Convention, the
humiliation or debasement involved
must attain a particular level of severity
and must, in any event, be other than the usual element of humiliation inherent
in any
punishment. It drew a distinction between a judicially imposed whipping,
as in
Tyrer v United Kingdom,
and punishment meted out on a juvenile
boarder through disciplinary rules in force in a private school. This amounted
to being slippered
three times on his buttocks through his shorts with a
rubber-soled gym shoe by the headmaster in private. The court held that in
the
circumstances of the particular case, the minimum level of severity had not been
attained. It is noteworthy that the decision
was carried by the narrowest of
margins, with five judges voting for it and four against. What is of interest
is how the Euorpean
Court, in the exercise of a value judgment, went about
evaluating the impugned conduct and distinguishing between the concepts
‘inhuman’
and
‘degrading.’
[68]
[49] It is not necessary to comment on the suggestion that judicial corporal
punishment is in reality no worse than cuts imposed
at school; the subject of
corporal punishment in schools is not before us. Suffice it to point out that
the European Court in
Costello-Roberts v The United
Kingdom
[69]
seemed to attach
some importance to the difference between strokes inflicted by a policeman as a
result of a court order, on the
one hand, and corporal punishment administered
by a headmaster in terms of disciplinary rules in force within the school in
which
the youth was a boarder. On the other hand, it was White J in a dissenting
opinion in
Ingraham v Wright
who stated:
"Where corporal punishment becomes so severe as to be unacceptable in a
civilised society, I can see no reason that it should become
any more acceptable
just because it is inflicted on children in the public
schools."
[70]
[50] The Constitution requires us to "have regard" to the consensus referred to
above;
[71]
we are not bound to
follow it but neither can we ignore it. The determinative test will be the
values we find inherent in or worthy
of pursuing in this society which has only
recently embarked on the road to democracy. Already South Africa has lagged
behind.
The Constitution now offers an opportunity for South Africans to join
the mainstream of a world community that is progressively moving
away from
punishments that place undue emphasis on retribution and vengeance rather than
on correction, prevention and the recognition
of human rights.
[51] In interpreting section 11(2) of the Constitution, however, we should not
only have regard to the position in other jurisdictions.
This Court has held
that in interpreting the rights enshrined in Chapter 3 of the Constitution, a
purposive approach should be
adopted.
[72]
In seeking the purpose
of the particular rights, it is important to place them in the context of South
African society. It is regrettable,
but undeniable, that since the middle
1980's our society has been subjected to an unprecedented wave of violence.
Disputes, whether
political, industrial or personal, often end in violent
assaults. In addition, during the same period, there has been a marked increase
in violent crimes, such as armed robbery and murder.
[52] The process of political negotiations which resulted in the Constitution
were a rejection of violence. In this context, it
cannot be doubted that the
institutionalised use of violence by the State on juvenile offenders as
authorised by section 294 of the
Act is a cruel, inhuman and degrading
punishment. The Government has a particular responsibility to sustain and
promote the values
of the Constitution. If it is not exacting in its
acknowledgement of those values, the Constitution will be weakened. A culture
of authority which legitimates the use of violence is inconsistent with the
values for which the Constitution stands.
[53] The conclusion that I have reached, that section 294 of the Act infringes
the rights contained in sections 10 and 11(2) of the
Constitution is consistent
with the view that has been expressed by many South African judges before. As
already indicated, the
courts in this country have acknowledged the
international consensus against corporal punishment and, in a sense, associated
themselves
with it in many judgments which have criticised, sometimes in the
strongest terms, the infliction of corporal
punishment.
[73]
Judicial
condemnation has resulted in adult whipping being imposed only in exceptional
circumstances and juvenile whipping, in
general, only as a device to keep the
juvenile out of
prison.
[74]
[54] The structure and content of Chapter 3 suggests a two-stage enquiry. The
first stage is concerned with establishing whether
there is a violation of a
right sought to be protected by the Constitution; this has been answered in the
affirmative. The second
leg of the enquiry deals with the question whether the
violation constitutes a permissible limitation of the right in question.
Section 33(1) of the Constitution provides:
"The rights entrenched in this Chapter may be limited by law of general
application, provided that such limitation ---
(a)
shall be permissible only to the extent that it is --
(i) reasonable; and
(ii) justifiable in an open and democratic society
based on freedom and equality; and
(b) shall not negate the essential content of the right in question,
and provided further that any limitation to ---
(aa) a right entrenched in section 10, 11 . . .
shall, in addition to being reasonable as required in paragraph (a)(i), also be
necessary.”
[55] Applicants contended firstly, that the rights at issue were not capable of
limitation and that section 33(1) of the Constitution
was therefore not
applicable. The implication of this proposition was that no further enquiry
was called for once a violation of
the right had been
proved.
[56] This argument raises an issue which this Court may have to confront in the
future and that is the tension between threshold
requirements and requirements
of limitation. The issue has been raised in argument in other cases which have
come before us. It
is, however, not an issue which needs to be resolved in this
case. In
S v Makwanyane (supra)
this court dealt with section 11(2) of
the Constitution on the basis that section 33(1) is applicable to breaches of
that section.
I follow the same approach in the present
case.
[57] Applicants claimed further that even if the right was subject to
limitation, juvenile whipping provisions failed to satisfy
the requirements of
section 33(1) of the Constitution. The attitude of the State was that juvenile
whipping was neither cruel nor
inhuman and it was no more degrading than other
acceptable punishments; it was contended that to the extent that the punishment
could
be said to be in some way humiliating or degrading, it was within
permissible constitutional limits because of the provisions of
section 33(1) of
the Constitution.
[58] The enquiry involves testing the measures adopted against the objective
sought to be achieved. The gist of it, put in the
context and the language of
section 33(1), really amounts initially to three questions, namely: (a)
whether the means used are
reasonable ; (b) whether they are justifiable in the
context of the civilized society we hope we are or which we, through this
Constitution,
are aspiring to be; and (c) whether they are necessary to attain
the objective. The test relies on proportionality, a process of
weighing up the
individual's right which the State wishes to limit against the objective which
the State seeks to achieve by such
limitation.
[59] This evaluation must necessarily take place against the backdrop of the
values of South African society as articulated in the
Constitution and in other
legislation, in the decisions of our courts and generally against our own
experiences as a people.
[60] In
State v Makwanyane and Mchunu
Chaskalson P deals with the
"proportionality" test which is also implicit in the limitation of rights in
Canada and the European
Court.
[75]
As a general conclusion he notes that the limitation of constitutional rights
for a purpose that is necessary in a democratic society
involves the weighing up
of competing values, and ultimately an assessment based on proportionality. He
points out how the German
Constitutional Court applies the proportionality test
in dealing with limitations authorised by the German Constitution:
"It has regard to the purpose of the limiting legislation, whether the
legislation in fact achieves that purpose, whether it is necessary
therefor, and
whether a proper balance has been achieved between the value enhanced by the
limitation, and the fundamental right
that has been
limited."
[76]
[61] The grounds on which the State sought to justify juvenile whipping were,
firstly, that it made good practical sense to have
juvenile whipping as a
sentencing option. The practice had advantages for both the offender and the
State, particularly in view
of a shortage of resources and the infrastructure
required for the implementation of other sentencing options for juveniles.
Secondly,
it was suggested that juvenile whipping was a
deterrent.
[62] The purpose of section 294 of the Act is to provide a sentencing option for
the punishment of juvenile offenders. What must
be addressed is whether it is
reasonable, justifiable and necessary to resort to juvenile whipping,
notwithstanding the fact that
it "constitutes a severe assault upon not only the
person of the recipient, but upon his dignity as a human
being."
[77]
The primary argument
advanced in favour of juvenile whipping was that it constitutes a better
alternative to imprisonment, particularly
in the so-called "grey area" crimes.
This was a reference to instances where a court has to deal with an offence
which is not so
serious as to merit a custodial sentence but is serious enough
to render inappropriate the use of "softer" sentences.
[63] It was argued that sentencing alternatives for juveniles were limited and
that this country did not have a sufficiently well-established
physical and
human resource base which was capable of supporting the imposition of
alternative punishments. This is of course an
argument based on pragmatism
rather than principle. It is a problem which must be taken seriously
nevertheless. It seems to me,
however, to be another way of saying that our
society has not yet established mechanisms to deal with juveniles who find
themselves
in conflict with the law; that the price to be paid for this state of
unreadiness is to subject juveniles to punishment that is cruel,
inhuman or
degrading. The proposition is untenable. It is diametrically opposed to the
values that fuel our progress towards being
a more humane and caring society.
It would be a negation of those values precisely where we should be laying a
strong foundation
for them, in the young; the future custodians of this
fledgeling democracy.
[64] We nevertheless need to examine available resources to determine whether
there are indeed appropriate sentencing options. It
has to be borne in mind
that the presence of various options in a number of legislative provisions may
not always reflect practical
realities. It is important that resources should
be made available and that they should be utilised properly, so that the values
expressed in the Constitution may be upheld and maintained. It bears mentioning
that although changes in the criminal justice system
have been occurring, albeit
at a painfully slow pace, there has been a perceptible shift in approach and
attitude towards punishment.
I mention three aspects of this process:
[65] (a) There has been a shift of emphasis with regard to the overall aims of
punishment. There is a general acceptance, as observed
by Schreiner JA in
R
v Karg,
[78]
that the retributive
aspect has tended to give way to the aspects of prevention and correction. New
and innovative systems and
procedures have been introduced and some of them have
been incorporated into legislation. The traditional objectives of punishment,
namely, prevention, retribution, deterrence and rehabilitation, are no doubt
still applicable. Still applicable, albeit in modified
form, are the remarks
of Holmes JA that
:
"Punishment should fit the criminal as well as the crime, be fair to the accused
and to society, and be blended with a measure of
mercy ... the element of mercy,
a hallmark of civilised and enlightened administration, should not be
overlooked, lest the Court
be in danger of reducing itself to the plane of the
criminal ...
"
[79]
[66] While those principles have remained eternal truths with regard to the
purposes of punishment, the justice and penal systems
have been evolving towards
a more enlightened and humane implementation of those principles. In keeping
with international trends,
there has been a gradual shift of emphasis away from
the idea of sentencing being predominantly the arena where society wreaks its
vengeance on wrongdoers. Sentences have been passed with rehabilitation in
mind.
[67] The introduction of correctional supervision with its prime focus on
rehabilitation, through section 276 of the Act, was a
milestone in the process
of "humanising" the criminal justice system. It brought along with it the
possibility of several imaginative
sentencing measures including, but not
limited to, house arrest, monitoring, community service and placement in
employment. This
assisted in the shift of emphasis from retribution to
rehabilitation. This development was recognised and hailed by Kriegler AJA
in
S v R
[80]
as being the
introduction of a new phase in our criminal justice system allowing for the
imposition of finely-tuned sentences without
resorting to imprisonment with all
its known disadvantages for both the prisoner and the broader
community.
[68] The development of this process must not be seen as a weakness, as the
justice system having "gone soft." What it entails
is the application of
appropriate and effective sentences. An enlightened society will punish
offenders, but will do so without
sacrificing decency and human
dignity.
[69] (b) There is growing interest in moves to develop a new juvenile justice
system. This impacts directly on the availability of
sentencing options for
juveniles. It has been a matter of comment that juveniles were being sentenced
to whipping on the basis that
it was the only alternative to a prison sentence.
Judges have, in the past, indicated their distaste for juvenile whipping; they
have, however, tolerated and confirmed the sentences purely as a device to avoid
imprisoning juvenile offenders.
[70] In
S v Maseti
Conradie J observed that the view that whipping
should be imposed as a device to keep juveniles out of prison was
fallacious:
" ... [r]egsbeamptes laat jong mans slaan omdat daar met ons beperkte middele,
infrastrukture en vonnisopsies, net geen ander raad
met hulle is nie . . .
Maar dat die veroorsaking van pyn en leed 'n onbevredigende vonnisopsie is, weet
ons algar
lankal.”
[81]
Noting that new sentencing options had been introduced into the criminal justice
system, he voiced the hope that they would be creatively
and effectively
used.
[82]
[71] Juvenile whipping, however, has not invariably met with judicial
disapproval. In
S v
Vakalisa,
[83]
Mitchell J
referred to remarks in
S v V en 'n
Ander
[84]
in which MT Steyn JA
dealt at length with the undesirability of corporal punishment and described it
as "extremely humiliating and
physically painful.” Mitchell J went on to
observe:
"Whatever may be the South African view of this kind of punishment [juvenile
whipping], the Transkeian lawgiver has taken a different
view of the
desirability of corporal punishment in respect of juveniles even, as I have
mentioned, specifically providing for the
whipping of female juveniles, a
sentence which is frequently applied in various magisterial districts of
Transkei. I would have
thought that it is far more important to keep juveniles
out of gaol where the appropriate circumstances exist, to save them the
association
with adult convicted criminals, than to shy away from the imposition
of a 'juvenile whipping'. This is particularly true in Transkei
when, if a
juvenile is sent to prison, he cannot be sent to one for first offenders only,
or to one where juveniles are effectively
kept apart from adult criminals, for
no such facilities yet exist in this
country."
[85]
[72] Apart from drawing attention to the distressing fact that some legislation
still permitted the whipping of females, Mitchell
J's remarks in fact summarised
what turned out to be the central argument proffered by the State in favour of
the retention of juvenile
whipping. If the option of corporal punishment is
taken away, so we were warned, many juveniles who would not otherwise have been
sent to gaol would now have to be imprisoned.
[73] Pickering J's approach in
S v Sikunyana
[86]
appears to be more helpful
in that it gives implicit recognition to alternative correctional supervision
sentencing options and the
need for courts not to be "unduly hamstrung" by
administrative and other difficulties in implementing community service
orders.
[87]
It would therefore seem
that notwithstanding the daunting problems highlighted by Mitchell J in 1990,
the prospects for more enlightened
sentencing options have improved.
[74] To the extent that facilities and physical resources may not always be
adequate, it seems to me that the new dynamic should
be regarded as a timely
challenge to the State to ensure the provision and execution of an effective
juvenile justice system. The
wider range of penalties now provided for in the
Act
[88]
permits a more flexible but
effective approach in dealing with juvenile
offenders.
[75] There is indeed much room for new creative methods to deal with the
problem of juvenile justice. During argument, we were
informed that
interesting sentencing options were being increasingly applied in the Western
Cape and that Conradie J’s suggestion
to magistrates was a further
encouragement to the process. There are, for instance, community service orders
which are linked to
suspended or postponed sentences. These are structured in
such a way that they meet the punitive element of sentencing while allowing
for
the education and rehabilitation of the offender. There is also the
victim-offender mediation process in terms of which the
victim is enabled to
participate in the justice process, receive restitution while the offender is
assisted to rehabilitate. There
are sentences which are suspended on condition
that the offender attends a juvenile offender school for a specific purpose.
These
orders are structured in such a way that they yield benefits to the victim
of the crime, the offender and to the community. Doubtless
these processes,
still in their infancy, can be developed through involvement by State and
non-governmental agencies and institutions
which are involved in juvenile
justice projects.
[76] (c) The enactment of the Constitution has created a framework within
which significant changes can be brought about in the
criminal justice system.
The rights entrenched in Chapter 3 are available to "every person"; that
includes children and adults,
women and men, prisoners and detainees. The
Constitution clearly places a very high premium on human dignity and the
protection
against punishments that are cruel, inhuman or degrading; very
stringent requirements would have to be met by the State before these
rights can
be limited.
[77] In addressing itself specifically to punishment, the Constitution ensures
that the sentencing of offenders must conform to
standards of decency recognised
throughout the civilised word. Thus it sets a norm; measures that assail the
dignity and self
esteem of an individual will need to be justified; there is no
place for brutal and dehumanising treatment and punishment. The Constitution
has allocated to the State and its organs a role as the protectors and
guarantors of those rights to ensure that they are available
to all. In the
process, it sets the State up as a model for society as it endeavours to move
away from a violent past. It is therefore
reasonable to expect that the State
must be foremost in upholding those values which are the guiding light of
civilised societies.
Respect for human dignity is one such value;
acknowledging it includes an acceptance by society that " . . .even the vilest
criminal
remains a human being possessed of common human
dignity."
[89]
[78] The State sought to strengthen its argument by pointing out the comparative
convenience of juvenile whipping as a punishment:
it satisfied criteria for
punishment, while at the same time affording the courts a reasonable sentencing
option; it was not too
harsh for young offenders, but it enabled them to "get it
over and done with" quickly. In this context, we were informed that parents
often asked for this punishment to be imposed.
[79] While there are obvious advantages to "quick" justice, society's greater
concern must be the form such punishment takes. The
solutions we adopt in
dealing with young offenders have to be part of a greater context and must be
consistent with the promotion
of the values which are reflected in the
Constitution. It cannot be reasonable and in keeping with these values to
imply, through
the punishments we impose, that the infliction of violence is an
acceptable option in the solution of problems. In any event, this
consideration
falls far short of the justification required to entitle the State to override
the prohibition against the infliction
of cruel, inhuman or degrading
punishment. Its implications for the dignity of the individual are also far
too serious.
[80] The State stressed the deterrent nature of juvenile whipping. Deterrence
is, obviously, a legitimate objective which the State
may pursue. We live in a
crime-ridden society; the courts and other relevant organs of the State have a
duty to make crime unattractive
to those who are inclined to embark on that
course. The concerns which the provision seeks to address are indeed pressing
and they
are substantial. But, as already stated, the means employed must be
reasonable and demonstrably justifiable. No clear evidence
has been advanced
that juvenile whipping is a more effective deterrent than other available forms
of punishment.
[81] In 1960 the Advisory Council on the Treatment of Offenders reviewed the
decision abolishing corporal punishment in the United
Kingdom, which had been
taken pursuant to the Cadogan Report of
1938.
[90]
The Council pointed out
that "[t]here is no evidence that corporal punishment is an especially effective
deterrent either to those
who have received it or to
others."
[91]
It therefore arrived
at the unanimous conclusion that judicial corporal punishment should not be
re-introduced. In
S v Motsoesoana
Page J, in an exhaustive analysis of
the law in relation to corporal punishment, arrived at the conclusion that
corporal punishment
serves no useful deterrent function, on the contrary,
“its effect is likely to be coarsening and degrading rather than
rehabilitative."
[92]
In his
judgment he also referred to an article by Professor Kahn on
Crime and
Punishment
1910-1960:
"Even making the utmost allowances for extraneous factors such as changes in
population and in the efficiency of the police force
and prosecuting
authorities, it seems reasonable to conclude that the deterrent effect of
compulsory whipping is nowhere to be seen.
If this is so, its retention can only
be atributed to some spirit of retribution or revenge."
[93]
[82] It may be relevant to observe that three of the applicants in this matter
had previous convictions for which they had received
strokes; one of them,
Witbooi, had in fact received five strokes a mere five months before the present
sentence. Some of the co-accused
had a variety of previous convictions for
which they had received sentences which included strokes. One of them, namely
Thomas,
had already received a total of sixteen strokes. The previous
punishment has obviously failed to act as a sufficient deterrent in
these
cases.
[83] I am, however, prepared to accept that there is some deterrent value in
juvenile whippings. As Milne JP observed in
S v Kumalo and Others
it
could be expected that:
" . . . the thought of a severe whipping, whether as a result of experience or
only of an act of imagination, could well have deterred
very many, although it
is all too evident that very many have not thereby been
deterred."
[94]
[84] What has not been shown is that such deterrent value as might exist is
sufficiently significant to enable the State to override
a right entrenched in
the Constitution. All indications are to the contrary. While juvenile
whipping has a brutalising effect,
it has not been shown that it has the
capacity to deter more than other punishments would do. Moreover, I agree
with the remarks
of Fannin J in
S v Kumalo and Others:
"Within comparatively recent times corporal punishment of quite horrifying
severity were inflicted for a great number of offences,
and I, for one do not
believe that the general deterrent effect of such punishments justified the
suffering and indignity which were
inflicted upon those who were so punished. I
am of the opinion that a whipping is a punishment of a particularly severe kind.
It
is brutal in its nature and constitutes a severe assault upon not only the
person of the recipient but upon his dignity as a human
being. The severity of
the punishment depends, to a very large extent, upon the personality of the
officer charged with the duty
of inflicting it, and over that the court ordering
the punishment can have little, if any,
control."
[95]
[85] Howie AJA, quite correctly in my view, warned against the idea that the
accused should be sacrificed on the altar of
deterrence.
[96]
To this I would
add that this is even more so when the court is dealing with a youthful
offender.
[86] If, as I have found, the deterrence value is so marginal that it does not
justify the imposition of this special punishment,
involving as it does the
deliberate infliction of physical pain, one has to conclude that the sole reason
for retaining it is to
satisfy society's need for retribution. While
retribution is, in itself, a legitimate element of punishment, it is not the
only
one; it should not be the overriding one. It cannot, on its own, justify
the existence of the punishment.
[87] It needs to be stressed that it is in the interests of justice that crime
should be punished. As pointed out by Schreiner JA
in
R v
Karg:
"It is not wrong that the natural indignation of interested persons and of the
community at large should receive some recognition
in the sentences that courts
impose, and it is not irrelevant to bear in mind that if sentences for serious
crimes are too lenient,
the administration of justice may fall into disrepute
and injured persons may incline to take the law into their own
hands."
[97]
[88] However, punishment that is excessive serves neither the interests of
justice nor those of society. According to Brennan
J,
[98]
punishment is excessive if it
is unnecessary, and it is unnecessary “if there is a significantly less
severe punishment adequate
to achieve the purposes for which the punishment is
inflicted.” In
Gregg v
Georgia
,
[99]
Stewart J,
described the unnecessary and wanton infliction of pain as an aspect of
excessiveness.
[89] Finally, the perceived advantages or benefits of juvenile whipping must be
weighed against the rights which the provision seeks
to limit. Corporal
punishment involves the intentional infliction of physical pain on a human being
by another human being at the
instigation of the State. This is the key feature
distinguishing it from other punishments. The degree of pain inflicted is quite
arbitrary, depending as it does on the person who is delegated to do the
whipping. The court merely directs the number of strokes
to be imposed. The
objective must be to penetrate the levels of tolerance to pain; the result must
be a cringing fear, a terror
of expectation before the whipping and acute
distress which often draws involuntary screams during the infliction. There is
no
dignity in the act itself; the recipient might struggle against himself to
maintain a semblance of dignified suffering or even unconcern;
there is no
dignity even in the person delivering the punishment. It is a practice which
debases everyone involved in it.
[90] I have already referred to the dictionary meaning of the words "cruel,
inhuman or degrading.” Conduct which fits any
one of the adjectives is
therefore hit by the prohibition. I however do not see any compelling reason to
confine the conduct impugned
to one adjective only. The deliberate infliction
of pain with a cane on a tender part of the body as well as the
institutionalised
nature of the procedure involves an element of cruelty in the
system that sanctions it. The activity is planned beforehand, it is
deliberate.
Whether the person administering the strokes has a cruel streak or not is beside
the point. It could hardly be claimed,
in a physical sense at least, that the
act pains him more than his victim. The act is impersonal, executed by a
stranger, in alien
surroundings. The juvenile is, indeed, treated as an object
and not as a human being. As pointed out in
Jackson v
Bishop:
". . . irrespective of any precautionary conditions which may be imposed, [it]
offends contemporary concepts of decency and human
dignity and precepts of
civilisation which we profess to
possess..."
[100]
[91] No compelling interest has been proved which can justify the practice. It
has not been shown that there are no other punishments
which are adequate to
achieve the purposes for which it is imposed. Nor has it been shown to be a
significantly effective deterrent.
On the other hand, as observed by Page J
in
S v Motsoesoana,
[101]
its effect is likely to be coarsening and degrading rather than rehabilitative.
It is moreover also unnecessary. Many countries
in the civilised world
abolished it long ago; there are enough sentencing options in our justice system
to conclude that whipping
does not have to be resorted to. Thus, whether one
looks at the adjectives disjunctively or regards the phrase as a "compendious
expression of a norm", it is my view that at this time, so close to the dawn of
the 21st century, juvenile whipping is cruel, it
is inhuman and it is degrading.
It cannot, moreover, be justified in terms of section 33(1) of the Constitution.
[92] I accordingly find that the provisions of section 294 of the Act violate
the provisions of sections 10 and 11(2) of the Constitution
and that they cannot
be saved by the operation of section 33(1) of the Constitution. Although the
provision concerned is a law of
general application, the limitation it imposes
on the rights in question is, in the light of all the circumstances, not
reasonable,
not justifiable and it is furthermore not necessary. The
provisions are therefore unconstitutional.
[93] It becomes unnecessary to embark on an investigation to determine whether
or not the provision in fact negates the essential
content of any of the rights
involved.
[94] In the light of this finding, I do not find it necessary to debate the
issue whether section 294 of the Act also infringes the
other provisions of the
Constitution, namely sections 8 and 30.
[95] There may well be cases where juveniles have been sentenced in terms of
section 294 of the Act but where the sentences have,
for some reason or other,
not yet been carried out. It follows from the finding of this Court that such
sentences will have to be
set aside by the courts having jurisdiction to do so
and new sentences substituted.
[96] The following order is accordingly made:
1. The following provisions of the Criminal Procedure Act No. 51 of 1977 (as
amended) are inconsistent with the Repbulic of South
Africa Constitution Act No.
200 of 1993 (as amended) and are, with effect from the date of this order,
declared to be invalid and
of no force and
effect:
45
(a) section 294 in its entirety; and
(b) the words “or a whipping” in section
290(2).
2. In terms of section 98(7) of the Constitution, it is ordered that with effect
from the date of this order, no sentences imposed
in terms of
section 294
of the
Criminal Procedure Act No. 51 of 1977
, shall be carried
out.
3. The matter of
State v Williams
(Review No. 53/94) is referred back to
the Cape of Good Hope Provincial Division for an appropriate
order.
P N Langa
Judge of the Constitutional Court
Chaskalson P,
Ackermann J, Didcott J, Kentridge AJ, Kriegler J, Madala J, Mahomed J, Mokgoro
J, O’Regan J and Sachs J all concur
in the judgment of Langa
J.
CASE NUMBER: CCT/20/94
COUNSEL ON BEHALF OF L J Bozalek
THE ACCUSED: P Hathorn
INSTRUCTED BY: S P Kahanovitz
Legal Resources Centre, Cape Town
COUNSEL FOR THE STATE: J Slabbert
DATE OF HEARING: 24 March 1995
DATE OF JUDGMENT: 9 June 1995
[1]
Act No. 51 of 1977 (as
amended). For convenience this will be referred to simply as "the Act.”
[2]
Act No. 200 of 1993 (as
amended). For convenience, this will henceforth be referred to simply as "the
Constitution."
[3]
1991(3) SA 76 (NmSC).
[4]
In
S v Pretorius
1987(2)
SA 250 (NC) it was held that where a magistrate has, in terms of section 294 of
the Act, sentenced a juvenile offender to
a whipping, and has conjoined a
sentence which is subject to automatic review to the whipping, the magistrate
does not have the jurisdiction
to suspend the infliction of the whipping pending
the result of the review. The case might of course be distinguishable on the
basis
that what is at issue here and what is sought to be reviewed, is the
sentence of whipping.
[5]
See
S v Ruiters en Andere, S
v Beyers en Andere, S v Louw en 'n Ander
1975(3) SA 526 (C);
S v M
1982(1) SA 240 (N);
S v V en 'n Ander
1989(1) SA 532 (A);
S v F
1989(1) SA 460 (ZHC);
S v Zuzani and Others
1991(1) SACR 534 (Tk).
[6]
See the provision in the
Constitution under the heading “National Unity and Reconciliation.”
[7]
Fannin J in
S v Kumalo and
Others
1965(4) SA 565 (N) at 574F; see also
S v Maisa
1968(1) SA 271
(T) at 271E.
[8]
De Wet CJ in
S v Myute and
Others and S v Baby
1985(2) SA 61 (Ck) at 62H; see also
S v Zimo en
Andere
1971(3) SA 337 (T) at 338G;
S v Ruiters et al
supra note 5, at
530B;
S v Seeland
1982(4) SA 472 (NC) at 476H.
[9]
Conradie J in
S v
Staggie
1990(1) SACR 669 (C) at 675C.
[10]
MT Steyn in
S v V en 'n
Ander
supra note 5, at 543D.
[11]
Greenland J in
S v F
supra note 5, at 460I.
[12]
See
S v Ximba and 2
Others
1972(1) PH H66 (N);
S v Motsoesoana
1986(3) SA 350 (N) at
355D;
S v Daniels
1991(2) SACR 403 (C) at 406B.
[13]
See e.g.,
S v Ncube; S v
Tshuma; S v Ndlovu
1988(2) SA 702 (ZSC);
Ex Parte Attorney-General,
Namibia: in re Corporal Punishment
supra note 3.
[14]
Some sections contain
general provisions which are applicable to both adults and juveniles, e.g.
section 276 which lists whipping
as one of a range of punishments which may be
imposed and section 292 which provides general guidelines for whipping.
[15]
See
S v Du Preez
1975(4) SA 606 (C).
[16]
Section 295(2).
[17]
Section 292(2) of the Act
prescribes a cane as the instrument to be used for adult whiping. See also
section 92(1)(c) of the Magistrates’
Court Act No. 32 of 1944 (as amended)
which prescribes that a cane only may be used for whipping. This provision,
however, excludes
juvenile whipping in terms of section 294. During oral
argument, we were informed that, in practice, canes conforming to the dimensions
listed in the regulations of the Department of Correctional Services are used
for both adult and juvenile whipping. See Regulation
100(4) promulgated in
terms of section 94 of the Correctional Services Act No. 8 of 1959 (as amended)
which provides that canes used
for the whipping of prisoners should approximate
125cm in length and 12 mm in width for adults and 100cm by 9mm for juveniles.
[18]
Section 294(1)(a).
[19]
Section 294(2).
[20]
Section 294(3).
[21]
Section 294(5).
[22]
Section 294(1)(b).
[23]
See
S v Ncube, S v
Tshuma, S v Ndhlovu
supra note 13, at 714I-715D and
Ex Parte Attorney
General, Namibia: In re Corporal Punishment
supra note 3, at 86A-C.
[24]
Article 5 of the Universal
Declaration of Human Rights, adopted by the General Assembly of the United
Nations on 10 December 1948,
forbids "torture or . . . cruel, inhuman or
degrading treatment or punishment.” According to Sieghart,
The
International Law of Human Rights
(1983) 159-160 and 162, the wording has
been followed with minor variations in a number of other international
instruments and national
constitutions adopted since 1949. See e.g., Article 7
of the International Covenant on Civil and Political Rights (ICCPR), which
is
identical; Article 3 of the European Convention for the Protection of Human
Rights and Fundamental Freedoms ( "torture or . .
. inhuman or degrading
treatment or punishment"); Article 5 of the Banjul Charter on Human and Peoples'
Rights (African Charter)
(". . . torture, cruel, inhuman or degrading punishment
and treatment").
[25]
Article 8 of the Namibian
Constitution, for instance, provides: “(1) The dignity of all persons
shall be inviolable. (2)(a)
. . . (b) No persons shall be subject to torture or
to cruel, inhuman or degrading treatment or punishment." No limitation applies
to this provision. See also
Ex Parte Attorney General, Namibia
supra
note 3, at 86D; Sieghart
op cit
at 161.
[26]
Mahomed AJA in
Ex Parte
Attorney-General, Namibia
supra, note 3, at 86 I.
[27]
R v Mountain
1928 TPD
86
at 88.
[28]
Hellberg v R
1933 NPD
507
at 510.
[29]
General Comment 20.4 of the
Human Rights Committee 1992 Report (referred to in and filed with
applicants’ brief).
[30]
See
Vuolanne v
Finland
96 ILR 649, 657.
[31]
See P van Dijk and GJH van
Hoof,
Theory and Practice of the European Convention on Human Rights
,
(1990), 2 ed., 226-227.
[32]
See
Denmark et al v
Greece
: Report of 5 November 1969,Yearbook of the European Convention on
Human Rights XII (1969), 186.
[33]
The Republic of Ireland v
The United Kingdom
[1978] ECHR 1
;
(1979-80) 2 EHRR 25
, 80, paragraph 167.
[34]
Id.
[35]
[1978] ECHR 2
;
(1979-80) 2 EHRR 1
, 9,
paragraph 29.
[36]
[1972] USSC 170
;
408 US 238
(1972). This case
held that capital punishment in the then existing statute, providing for capital
punishment, in the State of Georgia
was unconstitutional.
[37]
Id. at 273.
[38]
408 US 153
(1976). The
ruling in this case differed from that in
Furman v Georgia;
it was
held that the new statute providing for capital punishment in the State of
Georgia was not prohibited by the Eighth Amendment.
[39]
Id. at 173.
[40]
Smith v The Queen
(1988) 31 CRR 193
, 213.
[41]
Id. at 214.
[42]
Supra note 3.
[43]
Supra note 13, at 721H.
[44]
Supra note 5. At 462I-J
Greenland J agreed with the characterisation of corporal punishment as
"barbaric, inherently brutal, cruel,
inhuman and degrading."
[45]
1990(4) SA 151 (ZSC).
[46]
Id. at 168I-169B.
[47]
Supra note 35, at 11,
paragraph 33.
[48]
See
S v Juvenile
supra note 45, at 156F-H.
[49]
Supra note 3, at 87D-H.
[50]
Supra note 13, at
722A-D.
[51]
In
Trop v Dulles
356
US 86
(1958) at page 101, it was held that the Eighth Amendment must draw its
meaning from the evolving standards of decency that mark
the progress of a
maturing society. In
Weems v United States
[1910] USSC 127
;
217 US 349
(1910) at page
378, the court observed that the Eighth Amendment is progressive and does not
merely prohibit cruel punishments known
in 1688 and 1787, but may acquire wider
meaning “as public opinion becomes enlightened by humane justice.”
In
Jackson v Bishop
[1968] USCA8 253
;
404 F 2d 571
(1968) at page 579,
reference is
made to "contemporary concepts of decency and human dignity and precepts of
civilisation which we profess to possess";
see also
Nelson v Heyne
[1974] USCA7 47
;
491 F
2d 352
(1974).
[52]
Case No. CCT/ 3/94 at
paragraph 88.
[53]
This was done by the
introduction of the Criminal Justice Act 1948, pursuant to the Report of the
Departmental Committee on Corporal
Punishment(1938) (the Cadogan Committee). At
page 59 , the report points out: "In its own interests society should, in our
view,
be slow to authorise a form of punishment which may degrade the brutal man
still further and may deprive the less hardened man of
the last traces of
self-respect ... " Cited in
Ncube
supra note 13 at 710C.
[54]
Although it is still
included in the Criminal Code of Western Australia, it seems to have fallen into
disuse.
Ncube
supra note 13 at 711J-712A.
[55]
In 1790 Congress excluded
whipping from the punishments that might be imposed by the Federal Courts for
federal offenses. It, however,
continued to be applied in some States as a
method of enforcing discipline in prisons and against juveniles in institutions
and reformatories.
Only the State of Delaware still retains the ‘whipping
post.’
Ncube
supra note 13 at 713B-C.
[56]
Canada abolished corporal
punishment through the enactment of the Criminal Law Amendment Act 1972.
Ncube
supra note 13 at 710H.
[57]
In the applicants’
written argument it was pointed out that the
Tyrer
case effectively
proscribed judicial corporal punishment in countries subject to the European
Convention; the Netherlands Government
has declared that corporal punishment is
a violation of international instruments; Sweden, Denmark, Finland, Norway and
Austria have
formally proscribed corporal punishment in institutions as well as
in the home; and Cyprus abolished all corporal punishment in 1994.
[58]
Public floggings were
abolished in 1989 in accordance with the country's obligations under the African
Charter on Human and People's
Rights. Johannes Weir Foundation on Health and
Human Rights,
Health
Professionals and Corporal Punishment
(1990)
7.
[59]
R v Tsehlana
Rev.
Case 157/77 (High Court), cited in Stephen Neff:
Human Rights in Africa
33
International and Comparative Law Quarterly
(1984) at 339.
[60]
[1985] LRC (Const) 699
,
725G-726A.
[61]
Supra note 35, at 10,
paragraph 30.
[62]
Supra note 36, at
287-288.
[63]
Supra note 17.
[64]
(1980) 3 EHRR 531
at
556.
[65]
[1928] USSC 133
;
277 US 438
(1928) at
485.
[66]
See the remarks of
Dumbutshena CJ in
S v A Juvenile
supra note 45, at 161E-162E. See
also
Campbell and Cosans v United Kingdom
supra note 64, at 556.
[67]
Judgment delivered on 25
March 1993. Appellants referred to and included in their brief a Press Release
issued on 25 March 1993
by the Registrar of the European Court of Human Rights
which contained a synopsis of the judgment delivered that day. See also
the
discussion in Barry Phillips,
The Case for Corporal Punishment in the United
Kingdom. Beaten into Submission in Europe
, 43
International and
Comparative Law Quarterly
(1994) 153.
[68]
Press Release supra note 67,
paragraphs 30-32. See also Barry Phillips supra note 67, at 168.
[69]
Press release supra note 67,
paragraph 31.
[70]
[1977] USSC 56
;
430 US 651
at 692.
[71]
See section 35(1) of the
Constitution.
[72]
S v Zuma and Others
1995(4) BCLR 401 (SA) at 410F-412H ;
S v Makwanyane and Mchunu
supra
note 52, at paragraphs 9 and 10.
[73]
See the cases cited supra
notes 7 to 12.
[74]
See
S v Maisa
supra
note 7, at 271E;
S v Machwili
1986 1) SA 156
(N) at 157F-G;
S v
Motsoesoana
supra note 12, at page 358G;
S v Zimo en Andere
supra
note 8, at page 337H-338A;
S v Maseti
1992(2) SACR 459 (C) at page
464I-J;
S v V en ‘n Ander
supra note 5, at page 543E;
S v P
1985 (4) SA 105
(N) at page 107F; and
S v M
supra note 5, at page
245B.
[75]
Supra note 52, at paragraphs
104-109.
[76]
Supra note 52, at paragraph
108.
[77]
Fannin J in
S v
Kumalo
supra note 7, at 547F.
[78]
1961(1) SA 231(A) at
236A.
[79]
S v V
1972(3) SA
611(A) at 614D.
[80]
1993(1) SA 476 (A) at
488I.
[81]
Supra note 74, at 464
I-J.
[82]
Supra note 74, at
464J-465A.
[83]
1990(2) SACR 88 (Tk) at
94G-J.
[84]
Supra note 5.
[85]
Supra note 83, at 94I-J.
[86]
1994(1) SACR 206 (Tk).
[87]
Id. at 210G.
[88]
In addition to the
provisions of section 290(supra), a juvenile may also be dealt with in terms of
other sections of the Act, such
as, section 287 [fine]; section 297(1)(a- c)
[postponing sentence conditionally or unconditionally, suspended sentence
subject to
conditions; caution and discharge]; sections 276(1)(h) and 276A
[correctional supervision]; and converting the trial to an enquiry
in terms of
the Child Care Act No. 74 of 1983. The latter course has 4 options, namely:
(i) placing the child in the custody of
a suitable foster parent; (ii) sending
the child to a designated children's home; (iii) sending the child to a
designated school
of industries; (iv) returning the child to the parent or
guardian, under ... supervision of a social worker.
[89]
Brennan J in
Furman v
Georgia
supra note 36, at 273.
[90]
See
S v Motsoesoana
supra note 12, at 353F-G.
[91]
Id. at 353I.
[92]
Id. at 354D-F.
[93]
Id. at 352I-J: article
published in
1960
Acta Juridica
191
at 211-2.
[94]
Supra note 7, at 571H.
[95]
Id. at 574 E-H.
[96]
See
S v Sobandla
1992(2) SACR 613(A) at 617G.
[97]
Supra note 78, at
236A-B.
[98]
Furman
supra note 36,
at 279.
[99]
Supra note 38, at 173.
[100]
Supra note 51 at 579.
[101]
Supra note 12 at
354F.