Constitutional Court of South Africa

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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 ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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 ... ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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 ”

“ 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. ”

“ 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. ”

“ 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 ... ”

“ 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. ”

“ 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. ”

“ 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." ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ J Greenland J agreed with the characterisation of corporal punishment as "barbaric, inherently brutal, cruel, inhuman and degrading." ↑ 1990 (4) SA 151 (ZSC) . ↑ Id. at 168I-169B. ↑ Supra note 35, at 11, paragraph 33. ↑ See S v Juvenile supra note 45, at 156F–H. ↑ Supra note 3, at 87D–H. ↑ Supra note 13, at 722A–D. ↑ 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. ”

“ G. ↑ Id. at 353I. ↑ Id. at 354D–F. ↑ Id. at 352I–J: article published in 1960 Acta Juridica 191 at 211–2. ↑ Supra note 7, at 571H. ↑ Id. at 574 E–H. ↑ See S v Sobandla 1992 (2) SACR 613 (A) at 617G. ↑ Supra note 78, at 236A–B. ↑ Furman supra note 36, at 279. ↑ Supra note 38, at 173. ↑ Supra note 51 at 579. ↑ Supra note 12 at 354F.
This work is in the public domain because it was created and first published in South Africa and it is an official text of a legislative, administrative or legal nature, or an official translation of such a text. ”