r. CONSTITUTIONAL COURT
CASE NO.: CCT 20/94
In the matter between :
THE STATE and
H. WILLIAMS & OTHERS
ARGUMENTS ON BEHALF OF THE JUVENILE ACCUSED - 2 -
TABLE OF CONTENTS PAGE
A. THE ISSUE 1
B. CONSTITUTIONAL GROUNDS OF ATTACK 6
C. INTRODUCTION 9
D. CHAPTER THREE OF THE CONSTITUTION AND THE PROCESS OF CONSTITUTIONAL INTERPRETATION 10
E. LEGISLATIVE HISTORY OF CORPORAL PUNISHMENT/ADULT
AND JUVENILE WHIPPINGS IN SOUTH AFRICA 21
F. DESCRIPTION AND CONDITIONS OF JUVENILE WHIPPING 25
G. INCIDENCE OF WHIPPINGS IN SOUTH AFRICA 29
H. PRE-CONSTITUTIONAL LEGAL TREND IN SOUTH AFRICA 30
I. INTERNATIONAL LEGAL TRENDS IN RELATION TO CRUEL AND INHUMAN OR DEGRADING PUNISHMENT 40
J. THE RIGHT TO DIGNITY - INTERNATIONAL LEGAL ASPECTS 70
K. EQUALITY PROVISIONS IN SOUTH AFRICAN AND INTERNATIONAL LAW . 72
L CHILDREN'S RIGHTS - INTERNATIONAL AND LOCAL ASPECTS' RELEVANT TO JUVENILE WHIPPINGS 77
M. THE VICES OF JUVENILE WHIPPINGS 82 - 3 -
RACIAL DISCRIMINATION IN THE APPLICATION OF JUVENILE WHIPPING 82
PART II : AGE AND SEX DISCRIMINATION IN THE APPLICATION OF JUVENILE WHIPPINGS 84
PART 111 : POSSIBLE SEVERE PHYSICAL AND PSYCHOLOGICAL CONSEQUENCES OF JUVENILE WHIPPING 85
N. JUVENILE WHIPPINGS IN TERMS OF SECTION 214 VIOLATE FUNDAMENTAL RIGHTS : 92
PART I: IT VIOLATES THE PROHIBITION AGAINST CRUEL INHUMAN AND DEGRADING PUNISHMENT 92
PART II : IT VIOLATES THE RIGHT TO RESPECT FOR AND PROTECTION OF THE DIGNITY 92
PART III : IT VIOLATES THE PROHIBITION AGAINST DISCRIMINATION ON THE GROUNDS OF RACE, SEX AND AGE 93
PART IV: IT VIOLATES THE RIGHTS OF CHILDREN 93
O. JUSTIFICATION UNDER SECTION 33(1) OF THE CONSTITUTION 94
P. JUSTIFICATION STAGE NOT APPLICABLE TO SECTION 11 (2) VIOLATION 95
Q. ALTERNATIVE SUBMISSIONS 99 PART I : ONUS 99 PART II : REASONABLE AND JUSTIFIABLE IN AN OPEN AND DEMOCRATIC SOCIETY BASED ON — 4 —
FREEDOM AND EQUALITY ^ 100
R. THE STATE'S ARGUMENTS FOR JUVENILE WHIPPINGS 103 PART I : NO ADEQUATE SENTENCING ALTERNATIVE 103 PART II : THE EFFICACY OF JUVENILE WHIPPING 106 PART III : THE PUNISHMENT IS REQUESTED BY PARENTS 108
S. JUVENILE WHIPPINGS NEGATE THE ESSENTIAL
CONTENT OF THE RIGHT 110
T. JUVENILE WHIPPINGS ARE NOT NECESSARY 111
U. SECTION 241(8) OF THE CONSTITUTION 113
V. CONCLUSION 117 - 5 -
A. THE ISSUE
1. The limited issue before the Court is the constitutionality or otherwise of sentences of corporal punishment imposed upon male persons under the age of 21 years in terms of Section 294 of the Criminal Procedure Act, No. 51 of 1977 ("the Act"). Hereafter the commonly used phrase "juvenile whippings"- will also be used to denote corporal punishment imposed in terms of Section 294 of the Act.
2. Inevitably the issue overlaps with the constitutionality of otherwise of whippings which may be imposed upon adults (and juveniles) in terms of Section 276(1 Xg) read together with Sections 292, 293 and 295 of the Act. However in the Court a quo the State concedes, in effect, that adult whippings are unconstitutional (State's Heads of Argument p. 16 paragraph 33a).
3. Attached hereto marked Annexure "A" is a list of related legislative provisions. The list is not necessarily exhaustive. - 6
B. CONSTITUTIONAL GROUNDS OF ATTACK
4. It is submitted that the whipping of juvenile males in terms of Section 294 violates one or more of the following fundamental rights enshrined in Chapter 3 of the Constitution :
4.1 the prohibition against cruel, inhuman or degrading treatment or punishment - Section 11(2);
4.2 the breach of the equality clause prohibiting discrimination against any person, directly or indirectly, in this instance on the grounds of race, sex and age - Sections 8(1) and (2);
4.3 the right to respect for and protection of one's dignity - Section 10;
4.4 the right of children to security and not to be subject to neglect or abuse - Section 30(1 )(c) and (d);
4.5 the right of a juvenile to be treated, whilst in detention, in a manner that takes account of his or her age - Section 30(2).
5. It is submitted in the first place that insofar as State whippings of juvenile males breaches Section 11(2), the provisions of Section 33(1) are not applicable. Alternatively, in the event that the above - 7 -
'argument is rejected, it is submitted that State whippings of juvenile males cannot be justified in terms of Section 33(1) because they are not:
5.1 reasonable;
5.2 justifiable in an open and democratic society based on freedom and equality and negates the essential content of all five relevant rights inter alia because :
(a) its effectivenesses a punishment in a system of criminal justice is discredited or at best is unproven;
(b) within the South African context and having regard to the race, sex and age of those juvenile males who are whipped, it is applied unequally;
(c) it has a disproportionately severe effect on the persons to whom it is applied;
(d) it does not employ the least drastic means to achieve its objective;
5.3 insofar as whipping of juveniles is a cruel, inhuman or degrading treatment or punishment and violates the 8 -
fundamental rights of children protected in s30(l)(d)vand s30(2) and the dignity of persons (slO), it is not necessary. - 9 -
c. INTRODUCTION
6. Before returning to the specific grounds of objection the following topics will be dealt with :
6.1 A description of the practice and conditions of juvenile whippings;
6.2 The legislative history of corporal punishment, including juvenile whippings, in South Africa;
6.3 The international. South African and Southern African trends in relation to juvenile whippings;
6.4 The incidence of juvenile whippings in South. Africa;
6.5 The considerations usually raised in support of juvenile whippings.
7. After elaborating on the specific grounds of objection we will deal with the issue of justification in terms of Section 33(1) and the effect of Section 241(8). - 10 -
D. CHAPTER THREE OF THE CONSTITUTION AND THE PROCESS OF CONSTITUTIONAL INTERPRETATION
8. The structure of Chapter 3 of the Constitution - a set of fundamental rights expressed (usually) in broad, unqualified terms combined with a general limitation provision - is similar to that of the Canadian Charter of Rights and Freedoms.
9. The Canadian Courts have adopted a two stage approach to Constitutional adjudication. At the first stage, the party seeking to demonstrate an infringement of a Charter Right or Freedom bears the onus of doing so on a balance of probabilities. If such a breach is proved, at the second stage the party wishing to establish a justifiable limitation on a Charter right bears the burden of proof.1 Generally, the Provincial and Local Divisions of the Supreme Court have adopted the Canadian procedure in adjudicating on the Constitution.2
10. \f the two stage approach outlined above is applicable to the Constitution, in this case the sole issue to be decided at the first stage is whether s294 infringes one of the Chapter Three rights. Other considerations, such as the deterrent or rehabilitative effect of
1 R v Oakes (1986) 26 DLR (4th) 200 (SCC) at 223-227.
2 Qozelenl v Minister of Law and Order 1994(3) SA 625 (E) 640 G-J; Khala v Minister of Safety and Security 1994(4) SA 218 (W) 228 E-H. - 11 -
'"juvenile whipping, are, strictly speaking, relevant only at the second stage.3
PRINCIPLES OF CONSTITUTIONAL INTERPRETATION
11. it is often overlooked that the first stage of Constitutional review involves two conceptually distinct- but integrally related processes. With reference to the Canadian Charter of Rights and Freedoms, it has been stated :
"In the first stage of judicial review under the Charter, there are two related issues that have to be resolved in every case : one is the characterization of the challenged law, and the other is the meaning of the asserted right. The first issue requires an examination of the purpose or effect of the challenged law in order to determine whether it limits a Charter right. The second issue requires an interpretation of the language of the Charter of Rights in order to determine whether it has been abridged by the challenged law. Obviously, these two issues are inextricably linked in practice.'4
Tyrer v United Kingdom (58 IRL 339, 353 - 4) (the deterrent effect of corporal punishment is not a relevant consideration in determining whether it is a degrading punishment).
Peter W Hogg 'Constitutional Law of Canada' (1992) 805. - 12 -
PURPOSE OR EFFECT OF THE CHALLENGED LAW
12. In Canadian law if either the purpose or effect of a statute infringes
a Charter Right or Freedom the statute is unconstitutional. Normally
the Charter is breached through an incidental effect of a statute
with a benign purpose.^
INTERPRETATION OF THE FUNDAMENTAL RIGHTS
PRINCIPLES APPLICABLE TO CONSTITUTIONAL INTERPRETATION DIFFER FROM
STATUTORY INTERPRETATION
13. In Minister of Home Affairs v Fisher6 Lord Wilberforce adopted the principle that a constitution is a document "sui generis, calling for principles of interpretation of its own, suitable to its character".
14. Lord Wilberforce's dictum was endorsed by the Canadian Supreme
Court in Hunter v Southam.7 This approach has been endorsed by
South African and Southern African Courts.8
5 Peter W Hogg 'Constitutional Law of Canada' (1992) 807.
6 (1980) AC 319. 329, cited in Hunter v Southern (1985) 11 DLR (4th) 641 (SCC) 650.
7 op cit, 650.
8 Minister of Defence. Namibia v Mwandinghi 1992(2) SA 355 (NmSC) 363 C-G; Mwandingi v Minister of Defence, Namibia 1991(1) SA 851 (Nm) 858D - 859A; Khala v Minister of Safety and -security 1994(4) SA 218 (W) 222 C-G; But, contra, seeS v Saib 1994(4) SA 554 (D) 559 H-l. - 13 -
15. Vis submitted that the short expected lifespan of the current Constitution does not affect the above principles. It would lead to uncertainty and absurdity to apply one set of interpretational principles to the current Constitution and another to the final Constitution.
PURPOSIVE AND GENEROUS INTERPRETATION
16. Lord Wilberforce's dictum to the effect that a Constitution calls for "a generous interpretation avoiding what has been called "the austerity of tabulated legal ism", suitable to give to individuals the full measure of the fundamental rights and freedoms referred to"9 has become part of the currency of modern constitutional law.
17. The above dictum was developed by Lord Diplock who held, in connection with the Constitution of the Gambia :
nA Constitution, and in particular that part of it which protects and entrenches fundamental rights and freedoms to which all persons in the State are to be entitled, is to be given a generous and purposive construction."10
18. The Canadian Supreme Court has adopted a similar approach.11
9 Minister of Home Affairs v Fisher (1980) AC 319, 329 cited in Hunter v Southam (1985) 11 DLR (4th) 641 (SCC) 650.
10 Attorney-General of the Gambia v Momodou Jobe (1984) AC 689 (PC) 700, cited in Khala, 222 I-J.
11 See R v Big M Drug Mart Ltd (1985) DLR (4th) 321 (SCC) 359 - 360. - 14 -
19. The purposive or generous approach has been adopted in a number of Supreme Court judgments interpreting the Constitution.12
THE INTERPRETATION CLAUSES IN THE CONSTITUTION
20. The Constitution contains clauses dealing with the manner in which both Chapter 3 and the Constitution as a whole are to be interpreted. Sections 35(1) and (3) state ;
"In interpreting the provisions of this Chapter a court of law shall promote the values which underlie an open and democratic society based on freedom and equality and shall, where applicable, have regard to public international law applicable to the rights entrenched in this Chapter, and may have regard to comparable foreign case law.
In the interpretation of any law and the application and development of the common law and customary law, a court shall have due regard to the spirit, purport and objects of this Chapter."
21. It is arguable that s35(3) amounts to on endorsement of the purposive approach to interpretation. The spirit, purport and objects of Chapter Three which must be taken into account in the interpretation and development of all law are the values "which underlie an open and democratic society based on freedom and
12 Khala v Minister of Safety and Security 1994(4) SA 218 (W) 222 C - 224C; Phato v Attorney-General, Eastern Cape and another 1994(2) SACR 734 (E) 745h - 748j. - 15 -
'equality". Section 35(1) requires Courts to identity and promote the values mentioned.
22. Although it is unlikely that any Court outside South Africa has considered the meaning of the phrase "open and democratic society based on freedom and equality0, assistance can be derived from international and comparative judgments dealing with simitar concepts. Due regard should be taken of the fact that the Constitution places a stronger emphasis on equality than the comparable formulations.
23. The European Court of Human Rights has defined a "democratic" society in the following terms :
"...pluralism, tolerance and broad-mindedness are hallmarks of a "democratic society". Although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position."13
24. In a similar vein Dickson CJC, writing on behalf of an unanimous Canadian Supreme Court, has stated :
13 Closed Shop case (Application No. 7601/76) European Court of Human Rights judgment, August 13 1981, cited in En-ol P Mendes "Interpreting the Canadian Charter of Rights and Freedoms: Applying international and European Jurisprudence on the Law and Pracfice of Fundamental Rights2 (1982) 20 Alberta Law Review 383 at 399. - 16 -
"A second contextual element of interpretation of si is provided by the words "free and democratic society". Inclusion of these words as the final standard of justification for limits on rights and freedoms refers the court to the very purpose for which the Charter was originally entrenched in the Constitution: Canadian society is to be free and democratic. The court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society. The underlying values and principles of a free and democratic society are the genesis of the freedoms guaranteed by the Charter..."14
25. Section 232 deals with the interpretation of the Constitution as a whole. Of particular significance is s232(4) which stipulates that the Schedules to the Constitution are to be taken into account in interpreting the Constitution and makes specific reference to the section entitled "National Unity and Reconciliation".
26. Froneman J. in Qozeleni v Minister of Law and Order and Another15 after quoting the section on "National Unity and Reconciliation" states :
14 R v Oakes(1986)26DLR(4th)200(SCC)at225.
15 1994(3) SA 625 (E) at 634B. - 17 -
"The foundational concern of the Constitution is thus tojorm a bridge between an unjust, undemocratic and closed system of the past, and a future concerned with openness, democratic principles, human rights, reconciliation, reconstruction and peaceful co-existence between the people of the country/
INTERNATIONAL LAW AND CONSTITUTIONAL INTERPRETATION
27. Subsection 35(1) of the Constitution requires that a "court of law ... shall, where applicable have regard to the protection of the rights entrenched in this chapter'. Comparative law is placed on a lesser footing. Courts 'may have regard to comparable case law'.
28. The position with regard to comparative law does not require elaboration. Concerning international law, it is submitted that where similar rights are protected in international human rights instruments, the wording "shall have regard to" compels Courts with constitutional jurisdiction to consider the jurisprudence built around those rights in customary international law and international human rights treaties.
29. Recourse to international human rights law confers a number of benefits. The more detailed textual provisions of the treaties may be of assistance in giving meaning to fundamental rights stated in broad and general terms. Many of the treaties have been authoritatively interpreted by the agencies responsible for their implementation. Finally, treaty terms are often supplemented by - 18 -
more specialised provisions, which add clarity to the terms of^the treaties themselves. ^ °
30. The Courts in Zimbabwe and Namibia have had recourse to international and comparative law without any prompting from the drafters of their Constitutions. In the absence of the references to public international law and the case law of foreign jurisdictions our Courts undoubtedly would have followed the example of their Southern African counterparts.
31. Spelling out the role to be played by international and comparative law indicates the importance the drafters of the Constitution attached to these sources in Constitutional interpretation. It is submitted that the drafters' purpose was to signal an intention that the Chapter on Fundamental Rights should act as a bridge between South African law and the international legal system. The words of two of Canada's leading international lawyers, writing shortly after the introduction of the Charter of Rights and Freedoms are apposite :
"If a principal source of Charter language is to be found in the many international instruments under which Canada has varying degrees of obligation, or where the language derives from certain widely accepted principles of general international law, the Charter then becomes a bridge
16 See further : John Claydon ' International Human Rights Law and the Interpretation of the Canadian Charter of Rights and Freedoms' (1982) 4 Supreme Court Law Review 287 at 293-294. - 19 -
* between municipal and international law to a degree and with an intensity, not heretofore known in any of the multitude of links between the Canadian and international legal orders. Hence, it is unlikely that the practising bar and, in turn, the Courts, will be able to avoid the thrust of these associations since they will compel a resort to international law materials. Indeed, what is initially characterized as a problem of "constitutional law" interpretation, in applying the Charter, will often be seen to involve the international law origins, in concept and language, of the Charter itself. In short, the "characterization" problem will no longer be a simple search for Canadian or classical United Kingdom sources to assist in defining an issue or interpreting its substance. Almost every article in the Charter ... will be seen to have some major or minor connection with the large network of international human rights instruments on the one hand, or general international human rights law, at the customary law or general principles level, on the other."17
32. While it is not contended that Courts are bound by "applicable" public international law, it is submitted that generally where a broad consensus has been established in international law over the extent of a given right, that consensus should establish the minimum standard applicable to the Chapter Three right.
33. The above submission is broadly analogous to the position in Canadian law. The Canadian Supreme Court has held :
17 Maxwell Cohen and Anne F Bayefsky 'The Canadian Charter of Rights and Freedoms and Public International Law" (1983) 61 Canadian Bar Review 265 at 268. - 20 -
"The content ot Canada's international human rights obligations is, in my view, an important indicia of the meaning of the "full benefit of the Charter's protection". I believe that the Charter should generally be presumed to provide protection at least as great as that afforded by similar provisions in international human rights documents which Canada has ratified."18
18 Slaight Communications Inc v Davidson (1989) 59 DLR (4th) 416 (SCC) at 427. - 21 -
E. LEGISLATIVE HISTORY OF CORPORAL PUNISHMENT/ ADULT AND JUVENILE WHIPPINGS IN SOUTH AFRICA
34. Floggings along with much more barbaric punishments such as being drawn and quartered were a part of the legal and penal system of the Cape of Good Hope for many centuries. During the 18th century there were dramatic changes in penal philosophy with more primitive punishments being abandoned or ameliorated in favour of imprisonment. !9 However the whipping of offenders, whilst it is been abandoned in much of the rest of the civilised world, has retained a tenacious foothold in South Africa. Sloth-Nielsen attributes this to the colonial experience of slavery which resulted in the widespread practice of flogging slaves and the fact that South Africa's colonial status rendered whippings an ideologically acceptable form of punishment to white settlers. Thus when slavery was abolished in the 1830s, "Master and Servant laws that were enacted to compel erstwhile slaves to remain with their owners retained corporal punishment as the sanction for a number of offences. Generally these offences were disciplinary in nature ..."
35. Sloth-Nielsen cites an example of whites resisting the efforts of British administrators to curtail flogging as stubbornly defending "their right to impose this form of punishment freely" and the view articulated
19 "Legal Violence : Corporal and Capital Punishment" by J. Sloth-Nielsen in People and Violence in South Africa edited by McKendrick and Hoffman, Oxford University Press. - 22 -
r- by a speaker in the Natal Legislative Council in 1876, which was debating the proposed abolition of whipping for offences under the Master and Servants Ordinance 2 of 1850, to the effect that "... a kaffir liked a master who was masterful".
36. As recently as 1949 the Lansdown Commission of Enquiry on Penal Policy (UG47/47) recommended that whipping be retained as a sentence in South Africa chiefly because this punishment was a deterrent "of special efficacy" for Africans who had not yet emerged from an "uncivilised state".20
37. Corporal punishment has also been utilised as a tool of repression in times of social and political upheaval.21 In 1952 the newly elected Nationalist government, ignoring the limited recommendations of the Lansdown Commission of Enquiry of 1949, restricting the number of offences for which whipping should be imposed, adopted legislation making whipping a compulsory sentence for certain offences. HANSARD quotes the Minister of Justice as stating in Parliament in 1952, when explaining why corporal punishment should not be outlawed in South Africa as it was in England : "There they do not have the problems which we have as regarding people who are only now emerging from a state of barbarism, many of them are
20 Lansdown Commission of Enquiry, 1949 : para 484 cited in Sloth-Nielsen op cit.
21 Sloth-Nielsen, J (1989) "Corporal Punishment : The Past and the Future", paper presented at the conference entitled Towards Justice? Crime and Social control in South Africa, Cape Town. - 23 -
* still in that state, people who fear only death and physical pain and who have no fear of prison with its good rations, with its good treatment during the day and its good sleeping facilities at night/22 From mid-1957 to mid-1958 18 542 adult offenders, most of them black, were sentenced to a whipping in terms of the new legal provisions. This period corresponded to the rise in black political organisations.
38. In 1986 the Criminal Procedure Act was again amended to extend whipping provisions by adding the offences of public violence, sedition, arson and malicious damage to property to those for which corporal punishment was a competent sentence for adults. These changes accompanied widespread insurrection and challenges to state authority in the townships at the time.
39. Thus, concludes Sloth-Nielsen, "... it is important to consider historical, structural and political aspects of South African society in explaining the continued importance of corporal punishments here, when brutal and violent penal sanctions have been abolished in most parts of the civilised world."23
22 Hansard 31 January 1952.
23 Legal Violence : Corpora! and Capital Punishment - p. 77. - 24 -
40. r" For a more detailed account of the recent legislative history of corporal punishment see the article "Crime and Punishment" 1910- 1960 by Professor Ellison Kahn.24
24 1960 Acta Juridica pgs 191 -222. - 25 -
F. DESCRIPTION AND CONDITIONS OF JUVENILE WHIPPINGS
41, The following conditions govern juvenile whippings :
41.1 The sentence must be imposed "in private", must be a "moderate correction" and must not exceed 7 strokes - Section 294(1 )(a);
41.2 It may not be imposed on females - Section 294(1 )Ca) and 295(1);
41.3 The whipping is inflicted over the buttocks which are to be covered by normal attire - Section 294(2);
41.4 A parent or guardian may be present during the whipping - Section 294(3);
41.5 Any whipping must be preceded by a medical examination conducted by a district or assistant district surgeon who must certify that the juvenile is "in a fit state of health to undergo the whipping". [Section 294(4)3
42. As a matter of practice juvenile whippings are usually imposed in a police station or Court cells by a policeman.25
25 J Schmicl - "Corporal Punishmenr - unpublished conference paper presented in 1991 at the BI-Annual General Meeting of Nicro in Port Elizabeth. - 26 -
43. What is noteworthy however is the lack of any restrictions or controls regarding the following aspects :
43.1 Juvenile whippings can be imposed for any offence, and whether for a first or subsequent conviction;
43.2 There is no statutory or regulatory control on how many times a juvenile can be sentenced to a whipping;
43.3 Apart from the existing laws relating to cnminai liability there is no prohibition on the minimum age under which a juvenile may not be whipped;
43.4 The cane may be no more than 1 metre long and 9mm in circumference-20 We have however been unable to find statutory justification for this regulation;
43.5 Furthermore there is no statutory or regulatory provision for a pre-whipping pyschologica! examination and/or report;
43.6 The severity of the whipping, apart from the use of the qualifying words "moderate correction" and the upper limit of 7 strokes, is unregulated;
26 Sloth-Nielsen : Legal Violence : Corporal and Capital Punishment p. 73. - 27 -
437 No provision is made for the obligatory presence of a monitoring official at a juvenile whipping;
43.8 Neither is provision is made for a post-whipping medical examination or treatment.
44. The clinical terms of Sections 294 and 295 and the statistics give little idea of the reality of the experience of juvenile whippings.
45. The following account of the infliction of corporal punishment was obtained from a prisoner in Malaysia in 1982 :
"On this Friday, six of us were dragged off to the hospital compound so that this punishment... could be performed ... We were instructed to strip and then given small sarongs to wear. One by one, we were led into the doctor's office. The first prisoner was led out of the doctor's office and info the walled punishment compound directly behind. The rotan is more than a metre long and around a centimetre thick. One end is neatly bound in pink string to provide a firm grip for the warder, who will arrive at the punishment block with a bundle of half a dozen or so canes tucked under his arm. The warder will be dressed in khaki trousers but will wear a white T shirt instead of his usual unfirom top. Freedom of movement is essential. I was led into the closure ... I was told to remove the sarong, which I did ... The prison superintendent stood to my left and slightly behind me, with a doctor on one side of him and a prison officer on the other. Two other prison warders were in the punishment courtyard somewhere behind me." - 29 -
G. INCIDENCE OF WHIPPINGS IN SOUTH AFRICA
47. In the period 1987 to 1988 more than 40 000 people were whipped in South Africa according to figures provided by the Minister of Justice in Parliament. Thus on average 112 persons a day were sentenced to undergo corporal punishment, the majority thereof being juveniles.28
28 Figures quoted by Sloth-Nielsen in Legal Violence p. 78. See also Amnesty International "South Africa - Whippings" April 1990 AFR 53/19/90. - 30 -
H. PRE-CONSTITUTIONAL LEGAL TREND IN SOUTH AFRICA
48. Over the last three decades or more there has been steady and growing judicial criticism of state-imposed corporal punishment. In S v KUMALO29 Fannin J, in what has become a classic dissenting judgment, stated the following :
"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."30
49. In S v MAiSA^l Hiemstra J., referring to adult whippings, stated :
"(D)aar moet in aedagte gehou word dot die mens se persoonlike waardigheid een van sy kosbaarste besittings is, en hoe ouer hy word hoe dieper word dit deur lyfstraf aangetas."
50. In S v MYUTE & OTHERS and S v BABY32 De Wet C.J., also in regard to adult whippings, stated :
"The imposition of strokes is a very severe and a humiliating form of punishment which should only be imposed in the most serious cases, where, for instance, a cruel assault has been perpetrated, or the accused is a hardened criminal, or in certain instances of robbery."
29 1965(4) SA 565.
30 supra 574 F.
31 1968(1) SA 271 (T)
32 1985(2) SA 261 - 31 -
51. rJn S v MACHWILI'33 speaking of adult whipping Didcott J. (as he then was) stated :
"When an adult is flogged on the other hand, especially when he is flogged not in lieu of but in addition to being sent to gaol, nothing is achieved but revenge. Such is gained at a cost, what is more. Society's standards suffer. It stoops to the level of the criminal whom it punishes. It behaves with the same sort of barbarism as that which it condemned in him."
52. Whilst it is correct that the learned judge drew a distinction between adult and juvenile whippings, this distinction was in large part based on the lack of practical alternative punishments for juveniles. This factor, it is submitted, is now of much more limited application both because of changed factual circumstances as regards sentencing options and the role of the concept of justifiability in the present constitutional dispensation. It is submitted therefore that the observations of the learned judge quoted above apply with considerable force to juvenile whippings.
53. In S v MOTSOESOANA 1986(3) SA 350 (N) the Full Bench held, per Page J and Milne JP, Thirion J dissenting, that, save where whipping is imposed in lieu of imprisonment, corpora! punishment should, as a general rule, only be imposed in crimes involving violence to the person where the accused has displayed unusual cruelty and violence (physical or mental) to the person and where the Court is
33 1986(1) SA 156 NPD - 32 -
-convinced that no other form of punishment will constitute a Jtting retribution.34
54. The approach to corporal punishment expressed by Fannin J. in S v KUMALO has been quoted with approval in :
S v ZIMO & ANDERE 1971(3) SA 337 (7)
S v RUITERS & ANDERE, S v BEYERS & ANDERE, S v LOUW EN 'n
ANDER 1975(3) SA 526 (C)
S v SEELAND 1982(4) SA 472 (NC). Other cases in which considerable reservations are expressed about whippings are : S v MASETI 1992(2) SACR 459 (C) S v STAGGIE 1990(1) SACR 669 (C) S v VAKALISA 1990(2) SACR 88 (Tk) S v ZUZANI & OTHERS 1991(1) SACR 534 (Tk) S v DANIELS 1991(2) SACR 403 (C)
S v BAARTMAN 1991(2) SACR 452 (C).
55. As early as 1936 Krause J. stated in REX v THERON 1936 OPD 166 at 167 "Methods of violence and force may create fear and hatred, but hardly ever respect or affection. The old saying "spare the rod and spoil the child" has long ago been abandoned by educationalists. Our increased knowledge of the operations of the
34 p. 352 E-G. - 33 -
-mind has revealed the incontestable fact that in the upbuilding of character the rod should be sparingly, if ever, used."
56. Judicial disquiet concerning the imposition of whippings has been given expression to by the Appellate Division. In S v V EN 'n ANDER35 the Court (per Joubert, Steyn and Eksteen J.A.) held as follows :
"... whipping was by its nature an extremely humiliating and physically very painful form of punishment and ought to be imposed with great circumspection and only when either the personal circumstances of the accused or the nature and circumstances of the crime clearly justified it: it was imposed on juveniles to keep them out of gaol and on adults where there was a significant degree of cruel violence in the commission of the crime. Further that there had for some time already been a growing degree of temperance discernible in the attitude to corporal punishment: This appeared from various judgments, the lowering of the maximum age for the imposition thereof to 30 years, and the introduction during 1986 of the proviso to Section 292(1) of the Criminal Procedure Act 51 of 1977;"
57. The growing unease expressed by our Courts in imposing corpora! punishment on adults and juveniles has not only been occasioned by the recognition of the severe and brutal nature of corporal punishment. In S v MOTSOESANE36 Page J. set out in some
35 1989(1) SA 532 36 supra at 352 - 354 - 34 -
r- considerable detail extracts from Commissions of Enquiry, case law and academic writing which he described as constituting "a considerable body of authority, both judicial and academic, which holds the view that corporal punishment does not fulfil any useful deterrent function."37
58. After reviewing these authorities,.the learned judge arrived at the following conclusion . "I find myself in respectful agreement with the view that corporal punishments serves no useful deterrent function, and may add in conclusion that my own (admittedly limited) experience in practice and on the Bench has only served to confirm my conviction that this is so. \ am also unable to accept that corporal punishment fulfils any effective rehabilitative function when imposed in conjunction with imprisonment: in terms of the authorities mentioned its effect is likely to be coarsening and degrading rather than rehabilitative."
59. Both academic writers and commissions of enquiry have long expressed doubts as to the efficacy of whippings as a punishment in relation to the objects of penal policy.
60. In 1947 the Lansdown Commission of Enquiry, although recommending the retention of corporal punishment in South Africa subject to certain limitations, reported that "lyfstraf as 'n metode
37 supra at 352D - 35 -
.-. om misdaad te behandel is deur die meeste beskaafde lande van die wereld laat vaar...'
61. The Viljoen Commission of Enquiry into the penal system of the Republic of South Africa (1976) described as "in die kol" the observations of Fannin J. in S v KUMALO that one of the reasons why Parliament decided that whipping should no longer be compulsory in respect of certain of offences "... was, no doubt, that the policy did not seem to have had the desired deterrent effect".38
62. In his article "Crime and Punishment 1910-1960" Professor Ellison Kahn reached the following conclusion in relation to corporal punishment: '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 whippings is nowhere to be seen. If this is so, its retention can only be attributed to some spirit of retribution or revenge."39
63. In 1974 Dr. James Midgiey conducted a detailed examination of sentencing in the Cape Town juvenile Court-40 Of his sample of 898 cases he found that 57% of those convicted were sentenced to
38 Report para 5.1.6.11.9.
39 opcit at 211-212.
40 "Sentencing in the juvenile Court" 1974 SAU 451. 36 -
r-whippings, this being the sentence most frequently imposeaV41 It appeared that a whipping was imposed on those without a previous conviction almost as frequently as those who had one previous conviction. Midgley found that the most striking aspect of his study was the frequency with which children were whipped. Citing the findings of the Cadogan Committee in England which investigated the issue of corporal punishment in 1938 and whose recommendation that corporal punishment be abolished in the United Kingdom was implemented in 1948, Dr Midgiey concluded "... the present trend in the West is towards reduction if not abolition in the use of this form of punishment. This is sureiy desirable, for a punishment of this severity, if it is to be inflicted at ail, should be reserved for crimes of a grave nature and not employed as a panacea for all types of delinquent conduct. The juvenile Court should seek to extend its use of other sentences, particularly those to which some condition may be attached and those involving social work supervision, which allow the Court to emphasise its rehabilitative rather than its punitive purpose."
64. A similar study was quoted by the majority of the Court in S v MOTSOESONA. Two members of the Transvaal Bench published their conclusions after collating information obtained from every automatic review placed before them over a six month period.42
41 supra at p. 459.
42 "On the System of Automatic Review and the Punishment of Crime" (1962) 79 SAU 270-3. - 37 -
- Their observations with regard to juvenile offenders were as follows : "Of the 348 cases we reviewed where the accused had previously been convicted on a charge of assault with intent to do grievous bodily harm or of theft or housebreaking or robbery and was now convicted on a similar charge, the accused had received a juvenile whipping in 171 cases ... It seems more than likely that juvenile whipping has no real effect upon the offender and it certainly has no deterrent effect upon others .... It is also our view that repeated whippings can only have the effect of turning the offenders into hardened criminals.'43
65. More recently the National Institute for Crime Prevention and Rehabilitation of Offenders (NICRO) found in a 1987 study conducted in two Magisterial Divisions in the Cape, that corporal punishment accounted for 47.5% of the sentences imposed upon all first offenders who appeared in the Juvenile Court. It was thus the most commonly used form of punishment for those children who were first time offenders. The study reflected children as young as 10 years old being subjected to whipping.44
66. One seeks in vain however for any authority for the contrary proposition viz. that the imposition of whippings as a punishment in the criminal justice system has any proven deterrent effect.
43 op cit at 272-3.
44 Referred to in Legal Violence : Corporal and Capital Punishment, J. Sloth-Nielsen at p. 80. - 38 -
DISREGARD OF LIMITED SAFEGUARDS IN RESPECT OF SECTION 294
67. Over the decades the Courts have established guidelines to be observed by sentencing officers who impose or are considering the imposition of juvenile whippings. These guidelines are handily set out in the commentary on Section 294 of the Criminal Procedure Act in Du Toit-45 These guidelines or principles include the following ;
"The age of the accused is of great importance. Where the accused is only 8, 9 or 11 cuts would usually be inappropriate. In S v F 1989(1) SA 460 (ZH) the whipping of a 10 year old boy found guilty of the indecent assault of a 4 year old girl was described as a grave injustice, and the institution of criminal proceedings by the Attorney General was severely - and rightly - criticised."
"The personal circumstances of the accused are also most important. A pre-sentence report (and the opinion of parents) must always be a most helpful guide. Although the report is not a necessity, it remains desirable to obtain one before imposing a whipping on the juvenile."
"Although the juvenile offender may be sentenced to more than 2 whippings, it is not the type of punishment which should be applied repeatedly, especially where it is clear that the previous whippings had no effect. Rex v Nophasa 1948(4) SA 118 0)."
45 Commentary on the Criminal Procedure Act, Du Toit & Others, Juta. - 39 -
68. ' It will be noted in the present case that the above guideiinesMiave,
to a lesser or a greater degree, not been scrupulously observed for
example :
68.1 In S v Thomas and others (Record, pages 134-174), the 11 year old Samuel Witbooi was found guilty of theft and sentenced to "n matige tugtiging van 3 houe met 'n ligte rottang." despite his having been sentenced to 5 cuts approximately 5 months previously.
68.2 In Williams' case (Record, pages 116-133) the accused was sentenced to 5 cuts with a light cane although he was found guilty of an offence not involving violence (theft) and without any probation officer's report being placed before Court.
68.3 In the case of Jan Thomas (Record, page 167), he had been sentenced to juvenile whipping on four occasions.
69. Accordingly it is apparent that the various general principles and guidelines laid down are not being scrupulously observed and because these sentences generally fall outside the zone of reviewable sentences cannot be adequately monitored by the Supreme Court. - 40 -
I. INTERNATIONAL TRENDS IN RELATION TO CRUEL. INHUMAN OR
DEGRADING PUNISHMENT OR TREATMENT
70. Subsection 11 (2) of the Constitution reads as follows :
"No 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."
71. The genesis of ssll(2), like much of Chapter Three of the Constitution, is to be found in international human rights law.46
The Universal Declaration of Human Rights47 ("the Universal Declaration"), provides that:
"No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."
72. The wording of Article 7 of the International Covenant of Civil and Political Rights4^ ("the ICCPR") is identical to Article 5 of the Universal Declaration. Article 3 of the Convention for the Protection of
A6 See, in general, John Dugard "The Role of International Law in Interpreting the Bill of Rights" (1994) 10 SAJHR 208 at 210.
47 Adopted by the General Assembly of the United Nations on 10 December 1949.
48 Adopted by the General Assembly of the United Nations on 16 December 1966, resolution 2200 A (XXI). - 41 -
Human Rights and Fundamental Freedoms49 ("the European Convention") states :
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
73. The contention that the roots of ssl 1(2) can be traced to the international human rights instruments cited above (and the cognate provisions in national constitutions that preceded and followed them) is unlikely to prove controversial. The wording of Article 5 of the Universal Declaration has been followed in a number of national constitutions adopted after 1948.60
74. Where the substance of a provision is derived from international sources, slight deviations from the language used in the international instrument can be particularly meaningful.51
75. Significantly, the drafters of si 1(2) deviated from the wording of the Universal Declaration and the ICCPR by qualifying the word "torture" with the phrase "of any kind, whether physical, mental or emotional". The implication is that at least insofar as the term "torture" is concerned, a more generous standard than that used in the international instruments is to be applied. Given the similarity in
49 Adopted by the Council of Europe, Rome, 4 November 1950.
50 Paul Sieghart 'The Internationa! Law of Human Rights" (1983) 162.
51 M Ann Hayward "International Law and the Interpretation of the Canadian Charter of Rights and Freedoms : Uses and Justifications" 23 University of Western Ontario Law Review (1985) 9 at 17. - 42 -
r~ wording between si 1(2) and the international instruments^ it is submitted that the purpose of the drafters of the Constitution in ssll(2) was to give the people of South Africa at least the level of protection provided in the international human rights instruments from which the section is derived.
THE MEANING OF SECTION 11(2)
76. Reflecting on the ICCPR the United Nation's Human Rights Committee has stated :
"The Covenant does not contain any definition of the concepts covered by article 7, nor does the Committee 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."52
77. Similarly, the European Convention jurisprudence does not draw absolute distinctions between the concepts used in Article 3. The concepts are distinguished primarily by the degree of suffering inflicted.53
78. Subsection 11(2) should be read disjunctively as hitting seven different conditions :
52 Human Right's Committee 1992 Report, General Comment 20.4.
53 P van Dijk and GJH van Hoof 'Theory and Practice of the European Convention on Human Rights" (1990) 226-227. - 43 -
" (i) torture (as defined in the section);
(ii) cruel treatment;
(iii) cruel punishment;
(iv) inhuman treatment;
(v) inhuman punishment;
(vi) degrading treatment; and
(vii) degrading punishment.54
Inasmuch as Section 294 relates specifically to a punishment, of the above, only "cruel punishment", "inhuman punishment" and "degrading punishment" are relevant for present purposes.
CRUEL PUNISHMENT
79. The prohibition on crue! punishment is absent from the European Convention. There appears to be no international law explaining the concept,55 but if it is accepted that the concepts used in
54 Ex Parte Attorney-General Namibia : In Re Corporal Punishment 1991(3) SA 76 (NmSC) at 86 B-C.
55 Paul Sieghart "The International Law of Human Rights" (1983) 165. - 44 -
" ssl 1(2) are graded on a sliding scale, cruel punishment lies between torture and inhuman punishment on the scale of suffering inflicted.
80. The Eighth Amendment to the United States Constitution and si2 of the Canadian Charter of Rights and Freedoms both prohibit "cruel and unusual" punishment. The principles applicable to the Eight Amendment were stated by ~ Justice Brennan in Furman v Georgia :66
"The final principle inherent in the ... Clause is that a severe punishment must not be excessive. A punishment is excessive under this principle if it is unnecessary : The infliction of a severe punishment by the State cannot comport with human dignity when it is nothing more than the pointless infliction of suffering. If there is a significantly less severe punishment adequate to achieve the purposes for which the punishment is inflicted, the punishment inflicted is unnecessary and therefore excessive."
81. In Jackson v Bishop57 the Court of Appeals (Eighth Circuit) held that corporal punishment of prisoners in an Arkansas penitentiary was a "cruel and unusual" punishment. The Court found :
"we have no difficulty in reaching the conclusion that the use of the strap in the penitentiaries of Arkansas is punishment which, in this last third of the 20th century, runs afoul of the Eight Amendment: that the strap's use,
56 408 US 238, 279, cited in Nelson v Heyne 491 F.2d 352 (1974) at 355.
57 404 F 2d 571 (1968) at 579. 45 -
irrespective of any precautionary conditions which may be imposed, offends contemporary concepts of decency and human dignity and precepts of civilization which we profess to possess; and that it also violates those standards of good conscience and fundamental fairness enunciated by this court..."
82. In a subsequent case, the Seventh Circuit of the Court of Appeals held that the use of corporal punishment in juvenile institutions and reformatories is not per se a cruel and unusual punishment. The Court went on to find that the beatings in the case under consideration did contravene the Eight Amendment in that they caused painful injuries, were not proportionate to the offences and did not accord with contemporary standards of decency.58
83. The Canadian Supreme Court has read the words "cruel and unusual" (in Section 12 of the Charter) together as the "compendious expression of a norm". The norm is contravened when "the punishment prescribed is so excessive as to outrage standards of decency".59
84. In explaining the test for review under si 2, the Court held that the criterion :
"is one of gross disproportionate, because it is aimed at punishments that are more than merely excessive. We
58 Nelson v Heyne 491 F 2d 352 (1974).
59 R v Smith (1988) LRC (Const) 361, 379i - 380j. - 47 -
r. In the Greek case, the European Commission of Human Rights ("the European Commission") used the following standard :
"The notion of inhuman treatment covers at least such treatment as deliberately causes severe suffering, mental or physical, which in the particular situation, is unjustifiable. The word "torture" is often used to describe inhuman treatment, which has a purpose, such as the obtaining of information or confession, or the infliction of punishment, and is generally an aggravated form of inhuman treatment.1^3
89. In Ireland v United Kingdom, the European Court of Human rights ("the European Court11) considered five interrogation techniques employed by the British security forces, namely, wall-standing, hooding, subjection to noise, deprivation of sleep and deprivation of food and drink. The Court endorsed the European Commission's view that ill-treatment must reach a minimum level of severity in order to violate Article 3 :
"The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim, tH(^
90. The Court distinguished inhuman treatment from torture on the ground that the former attaches "a special stigma to deliberate inhuman treatment causing very serious and cruel suffering".65 The
63 Report of 5 November 1969, Yearbook of the European Convention on Human Rights XI) (1969), 186.
64 Ireland v United Kingdom (58 ILR 188, 264).
65 Ireland v United Kingdom (58 ILR 188, 266). - 46 -
should be careful not to stigmatise every disproportionate or excessive sentence as being a constitutional violation."ou
85. In an obiter dictum the Court stated that some punishments will always be grossly disproportionate and will always outrage standards of decency "for example, the infliction of corporal punishment, such as the lash, irrespective of the number of lashes imposed".61
86. Applying the standards of US and Canadian jurisprudence, it is submitted that corporal punishment under s294 of the Act outrages standards of decency, does not accord with the dignity of human beings and makes no measurable contribution to legitimate goals.
INHUMAN PUNISHMENT
87. The term "inhuman punishment" has received less consideration by international law tribunals than the related concept "inhuman treatment". Considering an alleged violation of Article 7 of the ICCPR, the Human Rights Committee stated :
"the assessment of what constitutes inhuman or degrading treatment falling within the meaning of Article 7 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.r62
60 ibid at 360 b-e.
61 ibid at 380.
62 Vuolanne v Finland (96 ILR 649, 657). - 48 -
Court found that the five techniques constituted inhuman treatment but not torture.00
91. In Tyrer v United Kingdom the Applicant was convicted of assault and sentenced by a juvenile court in the ls!e of Man to three strokes of the birch. The European Court stated baldly that the level of suffering occasioned must reach a particular level before it is an inhuman punishment under Article 3 and the requisite level was not achieved on the facts of the case.0^ The Court found the birching a degrading punishment in breach of Article 3.
DEGRADING PUNISHMENT
INTERNATIONAL LAW
92. The Human Rights Committee of the United Nations in its 1982 session stated that the prohibition in Article 7 of the ICCPR extended to corporal punishment.0^
93. In its 1992 Report, the Human Rights Committee takes this position further;
66 The European Commission in its investigation unanimously concluded that the techniques amounted to torture and inhuman treatment.
67 Tyrer v United Kingdom (58 ILR 339, 352).
68 Press Release HR/2284 dated 6 August 1982. - 49 -
2. The aim of the provisions of article 7 of the International Covenant on Civil and Political Rights is to protect both the dignity and the physical and mental integrity of the individual. It is the duty of the State party to afford everyone protection through legislative and other measutes as may be necessary against the acts prohibited by article 7, whether inflicted by people acting in their official capacity or in a private capacity.
5. The prohibition in article 7 relates not only to acts that cause physical pain but also to acts that cause mental suffering to the victim. In the Committe's view, moreover, the prohibition must extend to corporal punishment including excessive chastisement ordered as punishment for a crime or as an educative or disciplinary measure. If is appropriate to emphasize in this regard that article 7 protects, in particular, children, pupils and patients in teaching and medical institutions.'69
94. South Africa signed the ICCPR on 3 October 1994 but has yet to ratify the treaty. According to Sieghart the effect of signing a treaty without ratifying it;
"signifies at most an expression of intent by the State concerned to become bound by the treaty at some later stage, once certain conditions have been satisfied. Those conditions may be the signature or ratification of the Treaty by other States, or some internal acts ... In particular, where -as in the case of a human rights treaty - the instrument
69 Human Rights Committee 1992 Report, General Comment 20 (Article 7) (44th Session). - 50
imposes an obligation on State Parties to comply domestically with certain standards."70
95. Under Article 18 of the Vienna Convention on the Law of Treaties, a state which has signed but not ratified a treaty is obliged to refrain from actions which would defeat the purpose and objects of the treaty, even though it is not yet bound by it.71
96. In 1979 members of the Human Rights Committee supervising Hong Kong's performance of its obligations under the 1CCPR raised the issue why the territory had not abolished corporal punishment, which is in conflict with Article 7 of the Covenant. Following a report submitted to the Committee in May 1988, several areas of concern which indicated that the United Kingdom was not fulfilling its treaty obligations towards the territory were identified. One of the areas of concern was that corporal punishment was permitted in Hong Kong under three statutes. Prior to its third appearance before the Committee the Hong Kong government abolished corporal punishment.7^
97. The Human Rights Committee's understanding of article 7 is reinforced by the Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules).73
70 Paul Sieghart 'The International Law of Human Rights" (1983) 35
71 John Dugarcl "International Law - A South Africa Perspective" (1994) at 266-267.
72 Raymond Wacks (ed) "Human Rights in Hong Kong" (1992) 134 - 138.
73 General Assembly Resolution 40/33 of November 29 1985. - 51 -
98. Rule 17.3 of the Beijing Rules unequivocally provides that "Juveniles shall not be subject to corporal punishment".
99. Professor Anne Bayefsky makes the following comment on Rule 17.3 :
"The provision against corporal punishment is in line with article 7 of the International Covenant on Civil and Political Rights and the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as well as the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and the draft convention on the rights of the child."'4
100. The Beijing Rules define a juvenile as "a child or young person who, under the respective legal systems, may be dealt with for an offence in a manner which is different from an adult".75
101. The international law consensus over corporal punishment is reflected also in the standards relating to the treatment of prisoners :
101.1 Rule 31 of the Standard Minimum Rules for the Treatment of
0 Prisoners? :
74 Anne F Bayefsky "International Human Rights Law" (1992) 340. The Convention on the Rights of the Child was adopted by the UN in 1989.
75 Rule 2.2(a).
76 Adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Geneva, 1955 and approved by the Economic and Social Council on July 31 1957. - 52 -
"Corporal punishment, punishment by placing in a dark cell, and all cruel, inhuman or degrading punishments shall be completely prohibited as punishments for disciplinary offences."
101.2 Rule 37 of the European Prison Rules :77
"37. Collective punishments, corporal punishment, punishment by placing in a dark cell, and all cruel, inhuman or degrading punishment shall be completely prohibited as punishments for disciplinary offences."
101.3 Rule 67 of the United Nations Rules for the Protection of Juveniles Deprived of their Liberty -7&
"All disciplinary measures constituting cruel, inhumane or degrading treatment shall be strictly prohibited, including corporal punishment, placement in a dark cell, closed or solitary confinement or any other punishment that may compromise the physical or mental health of the juvenile concerned ..."
THE EUROPEAN CONVENTION ON HUMAN RIGHTS
102. The leading European Court case on whether corporal punishment is consistent with Article 3 of the European Convention is Tyrer v United Kingdom.79
77 Recommendation No. R(87)3 of the Committee of Ministers to Member States, adopted by the Committee of Ministers at the 40th meeting of the Ministers' Deputies on February 12 1987.
78 Adopted by the General Assembly (UN Doc A/RES/45/111) on December 14 1990.
79 (58 iLR 339). 103. 'The Court found that on the facts of the case (the Applicant was given three strokes with a birch by a police officer after being convicted of assault by a juvenile court) torture or an inhuman punishment had not been established. The only issue was whether the Applicant had been subjected to a degrading punishment.
104. The Court explained its understanding of "degrading punishment" in these terms :
"It would be absurd to hold that judicial punishment generally, by reason of its usual and perhaps almost inevitable element of humiliation, is "degrading" within the meaning of Article 3. Some further criterion must be read into the text. Indeed, Article 3, by expressly prohibiting "inhuman" and "degrading" punishment, implies that there is a distinction between such punishment and punishment in general.
In the Court's view, in order for a punishment to be "degrading" and in breach of Article 3, the humiliation or debasement involved must attain a particular level and must in any event be other than that usual element of humiliation referred to in the preceding sub-paragraph. The assessment is, in the nature of things, relative : it depends on all the circumstances of the case and, in particular, on the nature and context of the punishment itself and the manner and method of its execution."*^
80 op clt at 353. - 64
105. "In coming to the conclusion that the Applicant's punishment was degrading, the Court reasoned :
"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 it is one of the main purposes of Article 3 to protect, namely a person's dignity and physical integrity. Neither can it be excluded that the punishment may have had adverse psychological effects."^
106. A subsequent decision of the Court dealt with two boys who had attended schools at which corporal punishment was practised. One of the two had received an instruction to report for "taswing" - being struck on the hand with a leather strap - but had refused to accept the punishment.82
107. It was found that in the absence of the infliction of corporal punishment, the degree of humiliation or debasement required to constitute a degrading punishment had not been achieved. What
81 op clt 354 - 355
82 Campbell and Cosans case (67 ILR 480). - 55 -
r_ is significant in the judgment is that the decision does not eliminate the possibility of the mere threat of corporal punishment (e.g. through attendance at a school at which corporal punishment is practised) resulting in a violation of Article 3.
108. in Warwick v United Kingdom the European Commission confirmed that school corporal punishment may amount to degrading treatment in breach of Article 3; whether Article 3 has been breached depending on the degree of suffering experienced in each case.83
109. The Campbell case prompted the passing of the Education (No. 2) Act 1986 which effectively abolished corporal punishment in State schools in Britain. The Act did not extend to private schools.
110. Two cases resulting from the imposition of corporal punishment in private schools in Britain soon followed. In Y v United Kingdom a 15 year old schoolboy was struck with a cane four times over his trousers. The beating caused four weals to appear on the boy's buttocks, with swelling and bruising, causing considerable pain for some time afterwards. The Commission held that the Applicant had experienced "significant physical injury and humiliation" and that the level of suffering was sufficient to constitute an Article 3
83 Warwick v United Kingdom 36 D&R 49 (1984), cited in Barry Phillips "The Case for Corpora! Punishment in the United Kingdom. Beaten into Submission in Europe" 43 International and Comparative Law Quarterly 153 (1994) 157. - 56 -
violation.84 This case did not go to the European Court because a friendly settlement was reached between the applicant and the United Kingdom government.
111. The lower limit of the European Convention jurisprudence on Article 3 was tested by the second case, Costetlo-Roberts v United Kingdom. A seven year old schoolboy had been "whacked" three times on his bottom (through his pants) with a rubber-soled gym shoe. The Commission held that there had been a violation of Article 8 (private life) but not Article 3 :
"the punishment inflicted on the applicant, though pedagogically undesirable given his age and sensitivity, could not be said to have reached the level of severe ill- treatment prescribed by Article 3 of the Convention. Three smacks on the buttocks, through shorts, with a soft-soled shoe, apparently causing no visible injury, cannot be compared to the thrashing suffered by Anthony Tyrer when he was birched as a form of judicial corporal punishment."°5
112. The European Court confirmed the Commission's finding that the facts of the case had not reached the minimum threshold of severity required for a degrading punishment under Article 3.
84 Y v United Kingdom Report of 8 October 1991, cited in Bony Phillips 'The Case for Corporal Punishment in the United Kingdom. Beaten into Submission in Europe" 43 International and Comparative Law Quarterly 163 (1994) 156.
85 Report of 8 October 1991, cited in Phillips, op cit, 156-157. - 57 -
FOREIGN CASE LAW ON THE CONSTITUTIONALITY OF CORPORAL
PUNISHMENT
ZIMBABWE
113. InS v NCUBE; S v TSHUMA and S v NDHLOVU86 the Zimbabwean Supreme Court was called upon to determine whether the sentence of whipping of adult offenders breached Section 15(1) of the Declaration of Rights of the Constitution of Zimbabwe which is very similar in terms to Section 11 (2) of the Constitution of the Republic of South Africa, Act No. 200 of 1993. The Court unanimously found that adult whippings constituted a punishment which was in its very nature both inhuman and degrading.87 Gubbay J.A. conducted a wide-ranging review of the position in Southern African countries. United Kingdom, Canada, Australia and the USA and found the following adverse features, inherent in the infliction of the whipping, brought him to his conclusion :
113.1 the manner in which whippings were administered; (it must be said that the particular conditions governing adult whippings in Zimbabwe were particularly brutal);
113.2 the punishment treats members of the human race as non- humans violating their dignity as human beings;
86 1988(2) SA 702
87 supra at 721 G-H. - 58 -
113.3 it is a procedure easily subject to abuse in the hands of the person administering the whip;
113.4 the punishment is degrading to both the punished and the punisher.
114. Referring to his own earlier pronouncements on whippings Gubbay JA stated :
"Many years later in S v Ndhlovu & Another, while recognising a legitimate divergence of opinion, I ventured my personal opposition to whipping "as an inhuman, humiliating and degrading mode of punishment" and in S v Mathe I spoke of it as nothing short of "judicial barbarismV88
115. The learned judge concluded as follows: "I am further of the opinion, reached, I must confess, with little hesitation, that the whipping each appellant was ordered to receive breaches Section 15(1) of the Constitution of Zimbabwe as constituting a punishment which in its very nature is both inhuman and degrading. In coming to the conclusion I have had regard to : (i) the current trend of thinking amongst those distinguished jurists and leading academics to whom reference has been made;
88 supra 707 D. - 59 -
f (ii) the abolition of whipping in very many countries 6f the world as being repugnant to the consciences of civilised men; (iii) the progressive move of the Courts in countries in which whipping is not susceptible to constitutional attack, to restrict its imposition to sentences where a serious, cruel, brutal and humiliating crime has been perpetrated; (iv) the decreasing recourse to the penalty of whipping in this country, especially over the last 10 years, and the declining number of laws on the Statute Book in which it remains a permissible penalty."89
116. Two years later in S v A Juvenile90 the Zimbabwean Supreme Court faced the question of whether the imposition of a sentence of whipping or corporal punishment upon a juvenile was in breach of Section 15(1) of Zimbabwe's Constitution. The statute with which it was concerned, Section 331 of the Criminal Procedure and Evidence Act, provided for the whipping of males below the age of 19 years "to receive in private a moderate correction of whipping, not exceeding 10 cuts" at which whipping the parent or guardian could be present. This Section was therefore not dissimilar to Section 294(1) of our Criminal Procedure Act. Dumbutshena C.J. observed that there were only limited differences in the execution of a sentence of whipping upon adults and juveniles. He endorsed
89 p. 721 G-J
90 1990(4) SA 151 (ZS) - 60
r" "without reservation", the reasoning of Gubbay J.A. in S v NCUBE & OTHERS (supra) that state-imposed juvenile whippings constituted a punishment which in its very nature was both inhuman and degrading.
117. In his concurring judgment, Gubbay J.A. saw the crucial issue as being "whether a legislative provision that allows the Court to impose upon any male convicted person .... a moderate correction of whipping violates his absolute right to be protected against inhuman or degrading punishment.11^1 His conclusion was stated as follows : "I am, however, prepared to go further than the European Court of Human Rights and hold that judicial whipping, no matter the nature of the instrument used and the manner of execution, is a punishment inherently brutal and cruel; for its infliction is attended by acute physical pain. After all, that is precisely what if is designed to achieve. It may cause bleeding and scarring and at the very least bruises and swellings. Irrespective of any precautionary conditions which may be imposed, it is a procedure subject to ready abuse in the hands of a sadistic or over-zealous official appointed to administer it. It is within his power to determine the force of the beating. 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. It has been abolished in very many countries of the world as being incompatible with the
91 p. 167 E-G - 61 -
contemporary concepts of humanity, decency and fundamental fairness."92 The learned judge also observed that the whipping of juvenile offenders was counterproductive "... because it breeds resentment and hostility towards the society that authorises it and frustrates any attempt at social readjustment."93
NAMIBIA
118. in EX PARTE ATTORNEY GENERAL, NAMIBIA; IN RE CORPORAL PUNISHMENT BY ORGANS OF STATE?* the Namibia Supreme Court was called upon to determine whether the imposition of any sentence of corporal punishment by a judicial or quasi-judicial authority was in conflict with Article 8 of the Namibian Constitution which is in almost identical terms to Section 11(2) of Act 200 of 1993. Both provide that no person shalf be subject to "cruel, inhuman or degrading treatment or punishment". Likewise the Court had to deal inter alia with Section 294 of Act 51 of 1977 which save for Section 294(1 )(b) was identical to the section presently under consideration by this Court. Speaking for the Court Mahomed A.J.A. found that the question as to whether a particular form of punishment authorised by law could properly be said to be inhuman or degrading involved the exercise of a value judgment.95 The
92 p. 168-169 I-B.
93 p. 169 D-E.
94 1991(3) SA 76 (NmSC)
95 p. 86 H-l. - 62 -
judge stated that such a value judgment was required to be exercised, "regard being had to the contemporary norms, aspirations, expectations and sensitivites of the Namibian 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...."96 In this regard he observed that "What may have been acceptable as a just form of punishment some decades ago, may appear to be manifestly inhuman or degrading today. Yesterday's orthodoxy might appear to be today's heresy."
119. The Court found that there was an "accelerating consensus against corporal punishment for adults throughout the civilised world"97 and that there was strong support for the view that the imposition of corporal punishment on adults by organs of the State was indeed "degrading or inhuman and inconsistent with civilised values pertaining to the administration of justice and punishment of offenders".
120. Mahomed A.J.A. cited five considerations upon which this view was based :
120.1 the inviolable dignity of every human being which was violated by a state-sanctioned physical assault;
96 p. 86 i-J.
97 p. 88A - 63 -
120.2 the acute pain and physical suffering with which corporal punishment was and was intended to be attended by;
120.3 the systematic planning, prescription and execution of such assaults was inherently objectionable;
120.4 the irrationality, retribution and insensitivity on which the punishment was at least partly premised;
120.5 corporal punishment's inherent arbitrariness and capacity for abuse;
120.6 corporal punishment's alienating and humiliating nature given that it is inflicted by a stranger to the person being punished.98
121. The learned judge experienced no difficulty in concluding that corporal punishment upon adults was a form of "inhuman or degrading" punishment in conflict with the Namibian Constitution. He then turned to the question of whether the position was any different in respect of juveniles and found that most of the six aforementioned objections applied equally to juveniles. "Juveniles also have an inherent dignity by virtue of their status as human beings and that dignity is also violated by corporal punishment
98 p. 87 C-l - 64 -
inflicted in consequence of judicial or quasi judicial authority."?9 Mahomed A.J.A. stated further that "corporal punishment upon juveniles in consequence of judicial or quasi judicial direction also has a retributive element with scant appeal to the rational and emotional sensitivities of the juvenile".100
122. The Court then dealt with the three arguments raised in defence of corporal punishment, more specifically judicial whippings of juveniles. These were : the opportunity given to the sentencing officer to avoid more unsuitable alternatives, the differences in the way in which the punishment was executed (between adults and juveniles) and finally, that juveniles, being "accustomed to subordination", they would not be as adversely affected by a humiliating punishment. The learned judge rejected these arguments pointing out that the existence or otherwise of other sentencing alternatives was irrelevant to the central question of whether the punishment was inhuman or degrading as prohibited by the Constitution; that differences in the method of execution of the punishment did not detract from the essential nature of the unacceptable practice of inflicting deliberate pain and suffering and finally that the fact that a juvenile might arguably recover more quickly from a whipping than an adult did not render the punishment other than inhuman or degrading.
99 p. 90 H-l.
100 p. 90 J-91 A - 66 -
BOTSWANA. LESOTHO. SWAZILAND
123. By virtue of a savings clause certain forms of corporal are immune from constitutional attack under the Botswana Constitution. However in S v PETRUS & ANOTHERlOl the Botswana Court of Appeal held that a post-constitutional statutory amendment providing for strokes was ultra vires Section 7(1) of the Constitution which was in similar terms to Section 11 (2) of the Constitution Act No. 200 of 1993.
124. The facts in Petrus were that the Parliament of Botswana had sought to amend certain sections of the Penal Code to provide for penalties of imprisonment with corporal punishment including the administering of strokes each quarter in the first and last years of a prisoner's term of imprisonment.
125. In Lesotho the Courts have imposed restrictions on the whipping of people over 30.1u2
126. In Swaziland it has been held that corporal punishment should be used only in very exceptional circumstances as it rarely, if ever, has any beneficial effect.
101 (1985) LRC (Const) 699.
102 R v Tsehlana, Rev. Case No. 157/77 (High Court), cited in Stephen Neff "Human Rights in Africa" 33 International and Comparative Law Quarterly (1984) at 339.
103 Kunene v Rex, CRl Case No. 112/78 (High Court), cited in Neff, op cit, 339. - 66 -
MOZAMBIQUE
127. Mozambique abolished public flogging in accordance with its obligations under the African Charter on Human and People's Rights in 1989.104
INDIA
128. The Indian Constitution does not contain a specific clause entrenching the right to be free from cruel, inhuman or degrading punishment or a "due process clause". However, the principle of reasonableness as expounded by Bhagwati J. in Maneka's case 106 has been extended to provide protection from cruel and unusual punishment. 1 °6 It appears that judicial flogging has been abolished in India. 107
EUROPE
129. The Tyrer case, which emanated from the Isle of Man, effectively proscribed judicial corporal punishment in the countries which are
104 Johannes Weir Foundation on Health and Human Rights, "Health Professionals and Corporal Punishment" (1990), 7.
105 Maneka v Union of India, A. 1978 SC 597, cited by Durga Das Basu "Human Rights in Constitutional Low" (1994) 379, 378.
106 Durga Das Basu op cit, 3B4.
107 S v Petrus and Another (1985) LRC (Const) 699. 724e. - 67 -
'subject to the European Convention. In the United Kingdom judicially imposed whipping had been abolished following the Cadogan Investigation in 1938. The Criminal Justice Act implementing the Cadogan Committee recommendations was passed in 1948.
130. In 1960 the Advisory Council on the Treatment of Offenders, whose task was to reconsider judicial corporal punishment in the United Kingdom, recommended unanimously that corporal punishment should not be reintroduced as a judicial sanction for any offenders ;
'judicial corporal punishment is out of line with modern penal methods and would militate against the success of reformative treatment, such as probation or borstal. lu°
131. The United Kingdom is the only European country in which beating in schools (albeit only in private schools) is practised.109
132. The Netherlands Government has issued a formal statement that corporal punishment is a violation of international instruments such as the Universal Declaration and the ICCPR to dissuade Dutch medical officials abroad from certifying offenders as fit to undergo corporal punishments^
108 Cited in S v Ncube; S v Tshuma; S v Ndhlovu 1988(2) SA 702 (ZS) at 710 D-G.
109 Sandy Ghandhi "Spare the Rod : Corporal Punishment in Schools and the European Convention on Human Rights" 33 International and Comparative Law Journal (1984) 488.
110 Johannes Weir Foundation on Health and Human Rights, "Health Professionals and Corporal Punishment" (1990), 7. - 68 -
133. Five countries - Sweden, Finland, Denmark, Norway and Austria have formally prohibited all corporal punishment, in the home as well as in institutions. 111
NORTH AMERICA
UNITED STATES
134. Whipping has not been a competent sentence in Federal Courts since 1790. Of al! the States, Delaware is the only one that retains judicially imposed beating.112 Corporal punishment is still used in prisons and juvenile institutions as a disciplinary measure in some States.
CANADA
135. Judicial corporal punishment was abolished in Canada by the Criminal Law Amendment Act 1972. Prior to that time it was usually only imposed in exceptional circumstances marked by the use of violence. The obiter dictum of the Supreme Court in R v Smith113
111 Peter Newell "Children are People Too" (1989) 67. We are advised by the author of this study that a sixth countr/, Cyprus, abolished all corporal punishment in 1994.
112 See S v Ncube; S v Tshuma; S v Ndhlovu 1988(2) SA 702 (ZS) at 713 B-C.
113 (1988) LRC (Const) 361, 380 b-c. - 69 -
r. leaves no doubt that the practice would not have survive^ the introduction of the Charter of Rights and Freedoms.
AUSTRALIA
136. Apart from Western Australia, whipping is no longer a competent judicial punishment in Australia. It appears that although corporal punishment is still authorised under the Western Australian Criminal Code, it is no longer used in practiced 14
114 S v Ncubeat711 J - 712 A. - 70 -
J. THE RIGHT TO DIGNITY - INTERNATIONAL LEGAL ASPECTS
137. Section 10 of the Constitution protects human dignity : "Every person shall have the right to respect for and protection of his or her dignity."
138. The Section has international law antecedents. The preamble to the Universal Declaration opens with the words :
'Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and equality."
Article 1 of the Universal Declaration states "All human beings are born free and equal in dignity and rights". Article 5 of the African Charter on Human and Peoples' Rights reads "Every individual shall have the right to the respect of the dignity inherent In a human being..."
139. It would appear that the term "dignity" in international law has not been authoritatively interpreted-1^ It has been argued that the term is used in a broader sense in the international human rights instruments than in South African case law.11o
115 Paul Sieghart 'The International Law of Human Rights" (1983) 309; Azhar Cachalia et at "Fundamental Rights in the New Constitution" (1994) 33.
116 Cachalia et al, op cit, 33-34. - 71 -
140. In'the context of the present enquiry, the right overlaps to ajarge extent with the right not to be subjected to cruel, inhuman or degrading punishment. Much of our si 1(2) argument is equally applicable to slO. However, it is submitted that the scope of slO is broader than the right not to be subjected to degrading punishment. If a threshold level of suffering or humiliation is required for a breach of slO, it would come into play at a lower level than is required for degrading treatment or punishment. - 72 -
K. EQUALITY PROVISIONS IN SOUTH AFRICAN AND INTERNATIONAL LAW
141. Section 8 of the Constitution provides :
(1) Every person shall have the right to equality before the law and to equal protection of the law.
(2) No person shall be unfairly discriminated against, directly or indirectly, and, without derogating from the generality of this provision, on one or more of the following grounds In particular: race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture or language."
142. The importance of equality as one of the most important - if not the most important - values underlying the Constitution is apparent from a number of provisions ;
142.1 The preamble to the Constitution speaks of the need to create a new order "in which there is equality between men and women and people of all races".
142.2 It is argued above that where the language of the international instrument from which a provision Is derived is altered, the changes in wording might well convey important shifts in emphasis. Section 33(1 Xa) of the Constitution appears to have been derived substantially from si of the Canadian Charter of Rights and Freedoms, which reads : - 73 -
"The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out _ in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."
142.3 The Canadian usage "free and democratic society" has been replaced by "an open and democratic society based on freedom and equality". In the South African context the core values of freedom and democracy are supplemented by the concepts "openness" and "equality".
142.4 Equality as a fundamental constitutional value is stressed again in the interpretation clause "a court of law shall promote the values which underlie an open and democratic society based on freedom and equality".
142.5 The first paragraph of the section on National Unity and Reconciliation returns to the theme :
"This Constitution provides a historic bridge between the past of a deeply divided society characterised by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex."
142.6 Constitutional Principal III, stated in Schedule 4, is entirely unambiguous :
"The Constitution shall prohibit racial, gender and all other forms of discrimination and shall promote racial and gender equality and national unity." - 74 -
143. The last two passages cited contain indications that the spirit of equality fostered by the Constitution goes beyond formal equality, and extends to the active development of a more just society. This contention is reinforced by the provisions of s8(3), which embodies a commitment to addressing past injustices.
144. Although the term "equal protection of the law" in s8(l) contains echoes of the 14th Amendment to the United States Constitution, it is submitted that the presence of a separate justification clause in s33 of our Constitution enables us to avoid the complexities of the elaborate two or three tier structure of the United States equality precedents.1!7
145. Some assistance can be derived from the international law. The United Nations Human Rights Committee, in Danning v Netherlands118 placed the following gloss on Article 26 of the ICCPR :
"The right to equality before the law and to equal protection of the law without any discrimination does not make all differences of treatment discriminatory. A differentiation
117 Peter W Hogg "Constitutional Law of Canada" (1992) 1152 makes out the argument fully with respect to the Canadian Charter of Rights and Freedoms.
118 No 180/1984, cited in William A Schabas "International Human Rights Law and the Canadian Charter" (1991) 120. Article 26 states: "All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status" - 75 -
based on reasonable and objective criteria does not amount to prohibited discrimination within the meaning of Article 26."
146. Under the European Convention a contravention of Article 1411° is established when :
"(a) the facts found disclose a differential treatment; (b) the distinction does not have an aim, ie it has no objective and reasonable justification having regard to the aim and effects of the measure under consideration; and (c) there is no reasonable proportionality between the means employed and the aim sought to be realized."120
147. The general principles mentioned above are supplemented by Rule 2.1 of the Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) ;12]
"The following Standard Minimum Rules shall be applied to juvenile offenders impartially, without distinction of any kind, for example as to race, colour, sex, language, religion, political or other opinions, national or social origin, property, birth or other status."
Rule 17.3 prohibiting corporal punishment of juveniles has been referred to already.
119 Article 14 stipulates : "The enjoyments of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
120 Geillustreerde Pers NV v the Netherlands, D&R 8 (1977) p5, decision of the European Commission cited in P v Van Dijk and GJH van Hoof "Theory and Practice of the European Convention on Human Rights" (1990) 542.
121 General Assembly Resolution 40/33 of November 29 1985. - 76 -
148. 'Section 8(4) of the Constitution states :
"Prima facie proof of discrimination on any one of the grounds specified in subsection (2) shall be presumed to be sufficient proof of unfair discrimination as contemplated in that section, until the contrary is established."
149. Prima facie discrinnination on the basis of sex and age is established from a reading of s294 of the Act. .
150. in this regard see the separate section herein entitled "Racial Discrimination in the Application of Juvenile Whippings" in Section "M" Part I wherein it is submitted that juvenile whippings have been and continue to be applied on a racially discriminatory basis in South Africa.
151. Adapting the international law criteria, a discriminatory measure would not amount to "unfair discrimination" where (a) it has an objective and reasonable justification having regard to its aim and effects; and (b) there is a reasonable proportionality between the effects of the measure and its objective. These criteria correspond broadly to the proportionality test discussed below in the section on justification under Section 33. 77 -
L. CHILDREN'S RIGHTS - INTERNATIONAL AND LOCAL ASPECTS RELEVANT
TO JUVENILE WHIPPINGS
152. A number of aspects of Section 30 of the Constitution are pertinent:
30(1) Every child shall have the right - (c) to security, basic nutrition and basic health and social services;
(2) Every child who is in detention shall, in addition to the rights which he or she has in terms of section 25, have the right to be detained under conditions and to be treated in a manner that takes account of his or her age."
153. Section 30(3) stipulates that for the purpose of s30, a child is someone under the age of 18 and that in all matters concerning children their best interests shall be paramount. It is contended that s294 of the Act violates s30(l)(c), 30(1 )(d) and 30(2). The content of the rights will be examined after discussing the relevant international law principles.
APPLICABLE INTERNATIONAL LAW PRINCIPLES
154. The contention that international law proscribes a higher, rather than a lesser, level of protection for the rights of children can be sourced to Article 25(2) of the Universal Declaration. The Article states : - 78 -
"Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection."
155. The ICCPR deals with the rights of children in such geneal terms as to be of little assistance in constitutional interpretation J 22
156. Section 37 of the United Nations Convention on the Rights of the Child123 repeats the terms of the Universal Declaration and ICCPR pertaining to torture, cruel, inhuman and degrading punishment, referring specifically to children. Article 19 of the Convention on the Rights of the Child provides specifically (our emphasis) :
"1 States Parties shall fake all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse ... while in the care of parent(s), legal guardian(s) or any other person who has care of the child."
157. Rule 17.3 of the Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules)124 prohibiting corporal punishment of juveniles has already been cited.125
158. In the light inter alia of this express prohibition it is submitted that when s294 of the Criminal Procedure Act is measured against the
122 See Article 24.1 of the ICCPR.
123 Concluded on November 20 1989. South Africa signed the Convention on 29 January 1993, but has not yet ratified it.
124 General Assembly Resolution 40/33 of November 29 1985.
125 See Section "I" above. Its provisions are reinforced by Rule 67 of the United Nations Rules for the Protection of Juveniles Deprived of their Liberty. - 79 -
T' above international law standards, it should be held to infringe the childs right to security articulated in s30(l)(c) of the Constitution, it is submitted that there can be no compelling reason why the drafters of the Constitution would have proposed a standard lower than that established in international law.
159. It is submitted further that s294 exposes children to abuse or at least the possibility of abuse at the hands of those required to administer the whippings and accordingly violates s30(l)(d) of the Constitution. In S v NCUBE, Gubbay J,A. described corporal punishment as "easily subject to abuse" no matter what safeguards are applied."126 This 12 point was endorsed by the Courts in S v A Juvenile ^ and Ex Parte Attorney-General Namibia128
160. Before it can be contended that juvenile whipping infringes s30(2) of the Constitution, it must be established that a juvenile sentenced to be whipped is a "child who is in detention".
161. Rule 1 Kb) of the United Nations Rules for the Protection of Juveniles Deprived of their Liberty,129 states :
126 supra at 222 C-D.
127 supra at 152 D.
128 supra at 87 G.
129 Adopted by the General Assembly (UN Doc A/RES/45/111) on December 14 1990. - 80 -
"The deprivation of liberty means any form of detention or imprisonment or the placement of a person in another public or private custodial setting from which the person is not permitted to leave at will by order of any judicial, administrative or other public authority."
162. The juvenile who is about to be whipped is clearly not permitted to leave at will and accordingly qualifies as a person in detention according to the Rules for the Protection of Juveniles Deprived of their Liberty.
163. The interpretation given to the term "detention" above is supported by the jurisprudence of the Canadian Supreme Court. In R v Therens130 the Court held that the accused had been detained for the purpose of slO(b) of the Charter (the right to retain and instruct counsel on arrest or detention) when instructed by a police officer to accompany him to a police station to undergo a breathalyser test, in R v Hufsky131 the Court was required to decide whether the random stopping of the accused's motor car (in order to check licences, the mechanical fitness of vehicles and the sobriety of drivers), violated the right not to be arbitrarily detained under section 9 of the Charter. The Court found the accused had been detained :
"By the random stop for the purposes of the spot check procedure the police officer assumed control over the movement of the appellant by a demand or direction that might have significant legal consequences, and there was
130 (1985) 18 DLR (4th) 655 (SCC).
131 (1988) 40 CCC (3d) 398 (SCC). - 81 -
penal liabiHty for refusal to comply with the demand or direction." 132
164. Applying the generous and purposive approach advocated above, it is submitted that a juvenile offender about to be whipped is a "child who is in detention". Accordingly, the offender is entitled to be "treated in a manner that takes into account his or her age".
165. Section 294(1) makes no allowance for offenders who have been sentenced to whippings to be treated in a manner that takes account of their age. The 11 year old Samuel Witbooi who received three strokes 133 was not treated differently to a 20 year old offender receiving the same punishment.
166. For the purpose of justification under s33 of the Constitution it is submitted that s33(3) imposes an additional requirement for violations of s30 - it must be established that the limit on the right . infringed is in the best interests of the child.
132 ibid, 406.
133 Record Vol. 3 p. 139. - 82 -
M. THE VICES OF JUVENILE WHIPPINGS
PART IRACIAL DISCRIMINATION IN THE APPLICATION OF JUVENILE
WHIPPINGS
167. Surveys and investigations of the juvenile justice system strongly suggests racial bias in the application of corporal punishment.
168. Dr. Midgiey's 1974 study134 found that "Proportionately far fewer white children were sentenced to be whipped than black children. African and Asian children were not given the sentence as frequently as Coloured children. Whippings were imposed on 60% of the Coloured children who were convicted, on 50% of the few Asian children who were convicted, on 36% of the African children who were convicted but on only 12% of the White children who were convicted." The author did caution however that because of the small number of African and Asian children involved final conclusions could not be drawn.135
169. Sloth-Nielsen analyses the history of corporal punishment in South Africa and argues that it was used as an instrument of control by whites over blacks-136 She points out that from mid-1957 to mid-
134 op citp. 459
135 p. 46
136 op cit p. 196-202. - 83
* 1958 when 18 542 adult offenders were whipped only 436 thereof were white.
170. The author also cites a NICRO study conducted in 1987137 as suggesting racial disparity in the imposition of corporal punishment "The degree to which the sentence of cuts was used in comparison to other types of sentence varied between races. Where whites were found guilty, 16,3% were sentenced to cuts while in the instance of afMean offenders this portion was 71,6%. For "coloured" juveniles the percentage sentenced to a whipping was 56.8%. In a study conducted in the Durban/Umlazi area in 1980-1, similar conclusions was reached. It was found that race was a "significant factor when considering whether a juvenile is likely to be whipped and how many cuts will be administered. A whipping seems to be a sentence more likely to be imposed on blacks (Africans) and "coloured" than on Asians and whites."
171. The author concludes "Corporal punishment can be designated cruel not only because of its inherent physical brutality, but also as a consequence of the violation of the fundamental principle of equality before the law." 138
172. It is submitted that in view of the long history of racial discrimination which has pervaded the system of criminal justice in South Africa,
137 Legal Violence : Corporal and Capital Punishment, p. 80
138 supra at p. 81. - 84 -
strong indications of racial bias in sentencing and the racially-laden legislative history of corporal punishment, juvenile whipping in South Africa is a tainted institution. If it is to be retained, it could be imposed in a racially biased manner for years to come.
PART II : AGE AND SEX DISCRIMINATION IN THE APPLICATION OF JUVENILE WHIPPING
173. Section 295(1) of the Criminal Procedure Act prohibits the whipping of females. This was doubtless legislated in deference to what was perceived as the physical and perhaps the emotional sensitivities of the female sex. Such a blanket restriction however does not withstand scrutiny for rationality since heightened emotional sensitivity and physical frailty are not the prerogative of females alone. Accordingly, it is submitted, there is no rational basis for excluding females from the provisions of Section 294 and its present formulation represents unfair discrimination against male juveniles.
174. Inasmuch as the State apparently concedes the unconstitutionality of the whipping of adults the single class of males who will be exposed in practice to judicial whippings are those aged under 21 years. The only justification which can be advanced for singling out this group of males as persons subject to state-imposed whippings is 1 the argument expressed by McNally J.A. in S v A JUVENILE 39 f0 the effect that juveniles are "accustomed to subordination and
139 p. 171 G - 172 B. - 85 -
r open to correction". It is submitted that this argument, whidh was rejected by the Namibian Supreme Court in EX PARTE ATTORNEY GENERAL, is unscientific and unsupported by any psychological or sociological authority.
175. Indeed there is a strong argument favouring the contrary proposition, viz. that juveniles, inter alia because of their relative lack of fife experience and psychological defences, will be more vulnerable to and more harmed by the physical and psychological assault which a judicial whipping constitutes. Accordingly, in the absence of any rational basis why juveniles between the ages of 9 and 21 years may be whipped but not males between the ages of 21 and 30 years, for example, it is submitted that the singling out of juvenile males constitutes discrimination against an inherently vulnerable group (the young) in society in breach of the fundamental equality provisions embodied in Sections 8(1) and 8(2) of Act 200 of 1993.
PART III ; POTENTIAL SEVERE PHYSICAL AND PSYCHOLOGICAL CONSEQUENCES OF JUVENILE WHIPPING
176. There is widespread recognition that the whipping of juveniles can have extremely injurious consequences both physical and pyschological, - 86 -
PHYSICAL CONSEQUENCES
THE EVIDENCE OF DR. ARGENT (RECORD Vol. 1 pqs 56-59)
177. The injuries caused by a whipping can vary widely in case to case depending upon the force and technique employed by the person administering the whipping, the physical condition of the juvenile being whipped and his perception of pain. Dr. Argent states that "if enough force is administered there may well be tearing of skin and bleeding even if clothing is worn by the person being whipped" (Record Vol. 1 p. 57 para 4.2.1) and further that "a relatively light cane could cause a significant injury" (Record Vol. 1 p. 57 para 4.1.1).
178. In the light of Argent's evidence that the injuries caused by a whipping are likely to vary considerably by reason inter alia of factors extraneous to the subject of the whipping e.g. the strength and technique of the person administering the caning as well as whether the cuts are superimposed upon each other, it is submitted that the punishment contains a large element of arbitrariness a factor emphasized in Ex Parte Attorney General Namibia.140 This must render the punishment additionally suspect.
179. Descriptions of whipping both juvenile and adult leave no doubt as to the considerable degree of pain and injury which can be inflicted
140 supra at 87 G. - 87 -
• notwithstanding the euphemistic description of a juvenile whFpping
as a "moderate correction". As was pointed out by Gubbay J.A. in S v A JUVENILE141 the phrase "moderate correction" "... is not to be regarded as an instruction addressed by the Court to the nominated executive officer as to the degree of severity with which he is to administer the cut." The phrase assumes that the punishment will be "properly inflicted and that each of the cuts ordered will take full effect - yet that they be administered as judiciously and humanely as possible by a person able to exercise a healthy and balanced judgment. However it is inescapably so that the Court can exercise no control over whether the whipping is administered in this manner with the result that the potential for abuse, is great."
"It constitutes a violent corrective impact. One should not underestimate the physical pain a whipping by such an official will cause. It cannot be compared with parental chastisement, which normally takes place within a loving family circle."
180. See also the observations of various judges set out in Section H above.
181. In S v KUMALO & OTHERS Fannin J. noting too that the severity of the punishment depends to a very large extent upon the personality of the officer charged with inflicting it, stated (at 574 G-H) "A great many criminals who are so punished, indeed probably the majority of them, suffer no lasting effects either physical or mental
141 p. 166 E-H "but the others, who constitute, I am convinced a not inconsiderable minority, may well sutfer physical and mental after effects out of all proportion to the gravity of the offence for which they have been punished." The learned judge was referring to adult whippings and it is submitted that his observations have even greater force in the context of juvenile whippings.
PSYCHOLOGICAL CONSEQUENCES
182. There are a range of possible adverse psychological consequences as a result of the imposition of juvenile whipping. Discussing these effects Sloth-Nielsen writes "There is a good deal of evidence to suggest that a receiver of severe physical punishment "may model his behaviour on that of the punisher when he wishes to cope with or control the behaviour of others" (Van Zyl Smit & Offen 1985). In other words, administering flogging may well lead to an escalation of violence and aggression in the offender ....rather, it tends to "weaken the sense of shame on which the hope of improvement depends ... What results is a psychological resistance to change and an entrenching of the initial attitudes expressed."142
183. Sloth-Nielsen also notes that the administering of corporal punishment "is likely to brutalise the individual policeman or prison warder administering the strokes There is but a thin line between legitimate and authorised flogging in one context, below
142 Legal Violence : Corporal and Capital Punishment at p. 87-88. - 89 -
r" the Court room, and the appropriate response to delinquency in the context of the policing of township violence. Is the structure of our penal system not partly responsible for the many allegations of extra legal police whipping during township funerals, rallies and meetings? It is probable that were corporal punishment to be abolished as an authentic form of punishment in South Africa, the State's commitment to the values of decency and human dignity would have a far reaching and beneficial ripple effect on the levels of violence in this society." 143
184. There are further and subtler forms of pyschological damage caused as a result of juvenile whippings. Writing within the context of the effect of corporal punishment upon students Schmid has observed "According to extensive research, much psychological harm is done: students self-esteem is lowered as this punishment reinforces the concept that as a human being one is unworthy. Punishment, especially of a physical nature generates fear. After the event, children possess weakened negotiation and communication skills and are burdened by the experience of submission to abusive treatment by authorities. There are feelings of rejection and depression; greater dependence and inhibition, less co-operation, a development of an external locus of control. Various forms of physcopathy in children are found to correlate positively with the degree of physical punishment received. Even
143 supra at pgs 88-89 - 90 -
neurotic, psychosomatic and psychotic symptoms have ~been reported as a result of punishment."144
185. In the instant matter Dowdall, a clinical psychologist with special experience of working with survivors of physical and psychological trauma, has testified as to the possible injurious psychological effects of juvenile whippings. These include disorders of anxiety or depressive disorders and post-traumatic stress reactions the latter including concentration and memory problems, sleep disturbances, intrusive and distressing thoughts and images, emotional numbing, subjective dread, emotional lability, various physiological reactions and relationship difficulties. (Record Vol. 1 p. 61 para 7)
186. Dowdall also draws attention to the minimal or limited deterrent effect of Juvenile whippings upon hardened offenders where the whipping is likely to echo the physical abuse many may have experienced during their growing up period. He testifies as follows : "What is more likely is that this violent punishment, inflicted by the formal authorities at the behest of the state, legitimates the use of violence as a way of dealing with situations. It is likely in fact to have the paradoxical effect of increasing violent behaviour, in that modelling on a powerful aggressor is well-known to occur in this kind of situation. In addition, infliction of physical pain frequently has unintended results, including increased aggression, hatred of authority, anger and frustration. (Record Vol. 1 p. 61 para 8)
144 supra at p. 6 - 91 -
187. Dowdall underlines the difficulty of predetermining how given juveniles will react to a whipping and points out that hardened offenders are unlikely to be influenced by a whipping, except negatively. A second class of Vulnerable" juveniles will be adversely affected, leaving a third class about which predictions are impossible to make without d prior psychological report, a procedure which is neither provided for by the Act nor which is feasible.
188. In conclusion Dowdall endorses sentencing methods eschewing physical punishment as being more likely to serve the ends of rehabilitation.145
145 For a wider perspective of the psychological effects of corporal punishment see "Corporal Punishment in Legal, Historical and Social Context" by Frank Bates Manatoba Law JoumaJ Vol. 12 1982 p, 337. - 92 -
N. JUVENILE WHIPPINGS IN TERMS OF SECTION 214 VIOLATE
FUNDAMENTAL RIGHTS
PART I : SECTION 294 VIOLATES THE PROHIBITION AGAINST CRUEL.
INHUMAN AND DEGRADING PUNISHMENT - SECTION 1182)
189. Having regard to the international standards, the trend in international and comparative case law (particularly the case law of neighbouring states) and the day to day implementation of Section 294, it is submitted that iuveniie whippings violate the prohibition against cruel, inhuman and degrading punishment - Section 11 (2) of Act 200 of 1993.
PART II : SECTION 294 VIOLATES THE RIGHT TO RESPECT FOR AND PROTECTION OF DIGNITY - SECTION 10
190. Having regard to the abovementioned description and conditions of the imposition of juvenile whipping it is submitted that the imposition of this form of physical violence by an adult stranger upon a minor is incompatible with the respect for and the protection of both the dignity of the subject of the whipping and the person ordered to administer the whipping. - 93 -
PARTill : SECTION 294 VIOLATES THE PROHIBITION AGAINST DISCRIMINATION ON THE GROUNDS OF RACE. SEX AND AGE - SECTION 8
191. Having regard to the contents of Section O, Parts I and II, it is submitted that, at the very least, prima facie proof of discrimination on the above grounds has been made out as required by Section 8(4) of the Constitution.
PART IV : SECTION 294 VIOLATES THE RIGHTS OF CHILDREN - SECTION 30OKc) & (d) AND SECTION 30(2)
192. it is submitted that our Constitution, through the enactment of Section 30, has recognised that children are a particularly vulnerable group within society and has sought to provide protection for them.
193. It is submitted that the whipping of juveniles below the age of 18 is a violation of their right to security and not to be subjected to abuse. (Section 30(1 Xb) and (d).)
194. In this context it must be borne in mind that Section 294(1) establishes no minimum age below which juvenile may not be whipped. Instances of 9 and 10 year olds being subjected to whippings have been recorded and in the instant case it is noteworthy that Samuel Witbooi, an 11 year old youth, was - 94 -
r" sentenced to 3 strokes despite his having received 5" cuts approximately 5 months before. (Record Vol. 3 p. 139 and p. 174)
195. Similarly, consideration of the SAP 69's of the accused reveals that at least six of them had previously been sentenced to whippings. In one case, that of Jan Thomas, he had received a total of 16 cuts on four separate occasions. (Record p. 167) thus underlining the ineffectiveness of juvenile whippings as a deterrent punishment.
196. It is submitted that the whipping of juveniles between the ages of 9 to 18 renders the clauses purportedly protecting children's rights in terms of Section 30 hollow and ineffectual.
O. JUSTIFICATION UNDER SECTION 33(1) OF THE CONSTITUTION
197. If a violation of ssll(2) of the Constitution is established, ss33(l) requires that the limit :
(i) be by law of general application;
(ii) be reasonable;
(iii) be justifiable in an open and democratic society based on freedom and equality;
(iv) not negate the essential content of the right; and - 95 -
(v) be necessary.
198. We will argue that the justification stage is inappropriate with regard to violations of si 1 (2).
P. JUSTIFICATION STAGE NOT APPLICABLE TO SECTION 11 (2) VIOLATIONS
199. There is strong international law authority to the effect that there can be no justifiable limitation on the right not to be subject to torture or to cruel, inhuman or degrading treatment or punishment. If the international law authority is followed, the justification stage does not apply to ssl 1 (2) violations.
200. Sieghart in his discussion of the related clauses in the Universal Declaration, the ICCPR, the European Convention, the American Convention on Human Rights and the African Charter on Human and Peoples' Rights (at that time only in draft) states :
"in all cases the State obligation is absolute, non-derogable and unqualified.1^
201. Article 4 of the ICCPR, while permitting derogations from the Covenant in "time of public emergency which threaten the life of
Paul Sieghart The International Law of Human Rights (1983) 160-161. - 96 -
the nation and the existence of which is officially proclaimed... to the extent strictly required by the exigencies of the situation", does not allow any derogation from, inter alia. Article 7.
202. The Human Rights Committee147 has elaborated on the non- derogability of Article 7 :
"The text of article 7 allows of no limitation. The Committee also reaffirms that, even in situations of public emergency such as those referred to in article 4 of the Covenant, no derogation from the provisions of article 7 is allowed and its provisions must remain in force. The Committee likewise observes that no justification or extenuating circumstances may be invoked to excuse a violation of article 7 for any reasons, including those based on an order from a superior officer or public authority."
203. It is submitted that the Siracusa Principles, drawn up in 1984 to guide the interpretation of the limitation clauses in the International Covenant on Civil and Political Rights are relevant in considering the interpretation of Section 33. Some of these principles, which are quoted in full in "Rights and Constitutionalism" by Van Wyk et al148 include the following :
"1. No limitations or grounds for applying them to rights guaranteed by the Covenant are permitted other than those contained in terms of the Covenant itself. 3. All limitation clauses shall be interpreted strictly and in favour of the rights at issue. 7. No limitation shall be applied in an arbitrary manner.
147 General Comment 20 (Article 7), 1992 Report of the Human Rights Committee.
148 Rights and Constitutionalism - the New South African Legal Order edited by David Van Wyk and others, Juta & Co. Ltd 1994 - 97 -
9. No limitation on a right recognized by the Covenant shall discriminate contrary to Article 2, paragraph 1. 10. Whenever a limitation is required in the terms of the Covenant to be "necessary", this term implies that the limitation: (a) is based on one of the grounds justifying limitations recognized by the relevant article of the Covenant, (b) responds to a pressing public or social need, (c) pursues a legitimate aim, and (d> is proportionate to that aim. Any assessment as to the necessity ot a limitation shall be made on objective considerations. 11. In applying a limitation, a state shall use no more restrictive means than are required for the achievement of the purpose of the limitation. 12. The burden of justifying a limitation upon a right guaranteed under the Covenant lies with the state. 14. The limitation clauses of the Covenant shall not be interpreted to restrict the exercise of any human rights protected to a greater extent by other international obligations binding upon the state."
204. It is contended that the principles are applicable to s33 of the Constitution.
205. Article 15 of the European Convention excludes Article 3 from those provisions which may be derogated from. In Ireland v United Kingdom the European Court held :
"Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and, under Article 15 there can be no derogation therefrom even in the event of a public emergency threatening the life of the nation." >49
149 (58ILR 188, 264- 265). - 98 -
206. r"The non-derogation principles articulated above have "-been criticised as they prevent consideration of the deterrent or rehabiiitive effects of measures like corporal punishment.15° It is submitted these criticisms do not consider adequately the extent to which corporal punishment conflicts With international norms of decency.
207. The Constitution does not require the justification stage to be applied in all instances. In ss33(l) the phrase "The rights entrenched in this Chapter may be limited ..." (our underlining) indicates that the drafters of the Constitution did not envisage the invariable application of the limitation test.
208. In Canadian law, where it is established that the purpose (as opposed to effect) of a statute is to infringe a Charter Right or Freedom, the question of justification under si does not arise.151
150 Barry Phillips 'The Case for Corporal Punishment in the United Kingdom. Beaten into Submission in Europe" 43 International and Comparative Law Quarterly 153 (1994) 159- 161.
151 R v Big M Drug Mart 18 DLR (4th) 321 (SCC) 367. - 99
Q. ALTERNATIVE SUBMISSIONS
PART I : ONUS
209. In the alternative to the above, it is submitted that a party seeking to establish a justifiable limitation on a fundamental right bears the onus of justifying the limit on a balance of probabilities. 152
210. Although Dickson CJ in R v Oakes held the civil standard to be applicable, he stated that a very high degree of probability would be appropriate and where evidence is required in a si enquiry "it should be cogent and persuasive and make clear to the court the consequences of imposing or not imposing the limit".153
211. It is submitted that the State has not placed any evidence, or alternatively, any cogent and persuasive evidence before this Court in support of ss294(l) of Act 51 of 1977 being a justifiable limitation on ssl 1(2)' despite having had the opportunity to do s
152 R v Oakes (1986) 26 DLR (4th) 200 (SCO 225 - 226.
153 R v Oakes (1986) 26 DLR (4th) 200 (SCO 226 - 277.
154 Cf: Law Society of Upper Canada v Skapinker (1984) 9 DLR (4th) 161 (SCO 181- 182 (Evidence presented in support of justifiability of the limit insufficient for the Court to make a proper finding).
Hunter v Southam Inc (1985) 11 DLR (4th) 641 (SCO at 660 (no evidence in support of submissions that searches a reasonable limit demonstrably justified in a free and democratic society; accordingly question of justification not considered). - 100 -
PART II : REASONABLE AND JUSTIFIABLE IN AN OPEN AND DEMOCRATIC SOCIETY BASED ON FREEDOM AND EQUALITY
212. These criteria bear testimony to the influence of the Canadian Charter of Rights and Freedoms on the drafters of the Constitution. Section 1 of the Charter reads : "
"The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by laws as can be demonstrably justified in a free and democratic society."
213. In Oakes, two fundamental criteria were stipulated for a justifiable limitation on a Charter Right or Freedom :
"First, the objective, which the measures responsible for a limit on a Charter right or freedom are designed to serve, must be "of sufficient important to warrant overriding a constitutionally protected right of freedom"... It is necessary, at a minimum, that an objective relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important.
Secondly, once a sufficiently important objective is recognized, then the party invoking s.l must show that the means chosen are reasonable and demonstrably justified. This involves "a form of proportionality test".... Although the nature of the proportionality test will vary depending on the circumstances, in each case Courts will be required to balance the interests of society with those of individuals and groups. There are, in my view, three important components of a proportionality test. First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Secondly, the means, even if rationally connected to the objective in this first sense, should impair "a$ little as possible" the right or freedom in question... Thirdly, there must be a proportionality between the effects - 101 -
of the measures which are responsible for limiting the r Charter right or freedom, and the objective which has been identified as "of sufficient importance"."'"
214. With regard to the crucial minimum impairment stage of the proportionality test, the Canadian Supreme Court soon relaxed the Oakes criteria. In R v Edwards Books and Art, 156 Dickson CJC stressed the flexibility of the proportionality test and stated that the test could vary under different circumstances. At the minima! impairment stage the test was formulated as whether the Act abridges the relevant Charter right "as little as is reasonably possible".15? In its original formulation in Oakes, the word "reasonably" was not used.
215. It is not clear to us what arguments the State will raise in defence of juvenile whippings so as to render them reasonable and justifiable in terms of Section 33(1). What we propose to do however is examine those arguments which were advanced by the State in the Court a quo and examine them in the light of the requirements of Section 33(1).
216. Given furthermore the international and growing local consensus that juvenile whippings are cruel and inhuman or degrading punishment or treatment, and given that the State has failed to
165 R v Oakes (1986) 26 DLR (4th) 200 (SCC) 227.
156 (1986) 35 DLR (4th) 1 (SCC).
157 ibid. 44. - 102 -
"show that objective conditions in South Africa are any different from those in the societies from which we draw our comparative law, it is submitted that the State has failed to discharge the onus of proving that juvenile whippings are "reasonable". In this regard the word "reasonable" must be a strong indication that a comparative judgment is of great importance.
217. In the light of the large and growing number of countries which have abolished or declared juvenile whippings to be incompatible with basic human rights and dignity, it is submitted that juvenile whippings cannot pass muster on the test postulated above. Given moreover this emphasis on the value of equality, the fact that juvenile whippings as sanctioned by Section 294 allow discrimination on the grounds of sex, age and arguably, in its application, race, is yet further reason why this test is not met. t - 103 -
R. 'THE STATE'S ARGUMENTS FOR JUVENILE WHIPPINGS
PART I : NO ADEQUATE SENTENCING ALTERNATIVE
218. The State has contended in the Court a quo that if the option of juvenile whippings is removed Courts will be left with an inadequate range of sentencing alternatives for juveniles.
219. It is submitted in the first place that this contention loses sight of the central issue, namely, whether juvenile whippings is a form of cruel, inhuman or degrading punishment or treatment. As was held in EX PARTE ATTORNEY GENERAL NAMIBIA if a punishment is found to be unconstitutional, the fact that it is imposed for laudable motives such as to keep a juvenile out of prison does not render it any less of a breach.
220. In any event however it is submitted that the State's contention is not well-founded in fact. As has been set out in the affidavit of Sloth-Nielsen in the instant matter there is a wide and of late, rapidly expanding range of sentencing options which can be imposed in the case of juvenile offenders. (Record Vol I p. 38 - 40para 7) These include :
caution and discharge; postponement of sentence; suspended sentences; - 104 -
p. - ~ fines; correctional supervision; placement under the supervision of a probation officer; placement under the supervision of a correctional officer; placement in the custody of a suitable person; reform school;
and pursuant to an enquiry in terms of the Child Care Act, 1983 :
placement in the custody of a suitable foster parent; the option of returning a child to parent, guardian, a children's home or a school of industry.
221. More importantly the development of community service orders, victim offender mediation schemes, juvenile offender school programme all create substantial opportunities for the imposition of non-custodial sentences for juvenile offenders.
222. The author points out (Record p. 50-51 para 15.2) that juvenile justice in South Africa differs from other democratic countries in that the first resort in the great majority of cases is to formal prosecution within a punitive model, whereas in other democratic countries this is the choice of last resort. This, Sloth Nielsen states, is a key factor in explaining why juvenile whippings number approximately 36 000 per year "Whipping has been and is too frequently utilised as a - 105 -
sentence when lesser sanctions would, as in other countries" have sufficed."
223. Sloth-Nielsen concludes that, having regard to the legislative framework of the Criminal Procedure Act and the programmes being developed by NICRO and state welfare bodies, there exists a range of alternative sentencing options' for juvenile offenders within the South African legal system no different from that in "abolitionist" countries and furthermore that, given the existing infrastructure of industrial and reform schools, the abolition of juvenile whippings is most unlikely to lead to an increase in the prison population of other juvenile custodial institutions. In her view "the retention of juvenile whipping in the South African criminal justice system would be nothing less than an anomaly. By contrast its abolition will enhance and add weight to the new directions and trends in juvenile justice outlined above." (Record p. 53 para 17.3)
224. By contrast the State, neither through its deponent Nothnagel nor through any other form has been able to muster any concrete evidence that the criminal legal justice system will be unable to cope with juvenile offenders in the event that juvenile whippings are abolished. It is submitted furthermore that for a variety of reasons the imposition of whippings has long been an easy option resorted to by sentencing officers and supported by social welfare workers for the same reason and that the removal thereof will act as a spur to - 106 -
"the authorities in finding or developing civilised sentencing alternatives thereto.
225. it is significant that the State's own expert witness, Nothnagel, expresses only qualified support for juvenile whippings by stating that it should not be imposed unless an expert has diagnosed a lack of discipline as the cause of the offence and furthermore that the whipping should be imposed by a father figure having a compassionate relationship vis-a-vis the juvenile whom he is whipping. (Record Voi. 1 p. 26 third last paragraph.)
226. It is submitted that neither qualification is or can be met either within the present statutory framework or an amended one. The first qualification is simplistic in postulating that some offences will present themselves as simply being the result of "a lack of discipline". The second qualification is, for obvious reasons, utterly impractical.
PART II : THE EFFICACY OF JUVENILE WHIPPING
227. The question of whether juvenile whippings are an ineffective punishment in the sense that they provide a real deterrent to offenders, must form part of the question as to whether they are reasonable and justifiable in an open and democratic society. If the punishment has no deterrent value then it is merely punishment for punishment's sake i.e. reflecting only the element of retribution. It is conceded however that this issue might also have to be 107 -
" addressed if the State is able to surmount the first hurdles of Section 33(1) and faces the last one namely that of proving that juvenile whippings involve a "necessary" limitation of the rights of citizens.
228. The inefficacy of juvenile whippings, particularly as a deterrent has been remarked upon on numerous occasions. Judges and academic writers have observed that the sole purpose of whippings appears to be retribution. Juvenile whippings appear to constitute the infliction of pain simply for the sake thereof.
229. In S v MOTSOESOANA158 the learned Judge quoted the findings of the Advisory Council on the Treatment of Offenders which in 1960 reviewed the decision to abolish whipping originally taken pursuant to the recommendations of the Cadogan Committee in 1938. The Advisory Council had been required to review the aforesaid decision in the light of recent developments in crime and it concluded that although some of its members had initially considered that "the re- introduction of judicial corporal punishment might be justified as a means of checking the growing increase in crime generally and in offences of hooliganism in particular" but that, having studied the views expressed to the Committee and the available evidence, "we consider that the findings of the Cadogan Committee are still valid and have come unanimously to the conclusion that corporal punishment should not be introduced as a judicial penalty in respect of any categories of offenders or of offences."
158 1986(3) SA 350 (N) at 354 E-G. - 108 -
230. The Advisory Council also stated specifically "There is no evidence that corporal punishment is an especially effective deterrent either to those who have received it or to others."
PART III : THE PUNISHMENT IS REQUESTED BY PARENTS
231. The circumstances in which parents may sometimes request that their children be whipped are not known but are most likely to take place where the parent/s perceives whipping as the only alternative to imprisonment of the juvenile; in effect Hobson's choice. Such a stark choice need not be made if the full range of sentencing options are properly considered and exercised. Finally it is not unknown for convicted murderers to ask that they receive the death penalty. However this is unlikely to loom iarge as an argument against the imposition of the death penalty.
232. Applying the Oakes test we shall assume that the "pressing and substantial concern or objective pursued by the State is to retain juvenile whippings as an sentencing option for juveniles as an alternative to imprisoning juveniles.
233. Assuming that this is the State objective it is submitted that juvenile whipping does not meet the requirements of the second leg of the Oakes test namely the proportionality test with its three components namely that the measures adopted must be rationally connected to - 109 -
the objective, should impair the right "as little as reasonably possible" and the requirement of proportionality between the effects of the measures and the objective.
234. It is submitted that the proved lack of a deterrent effect of juvenile whippings removes any basis for a "rational connection" between the means (the whipping) and the objective (keeping juveniles out of prison).
235. The existence of other forms of non-custodial sentencing options and the lack of effective safeguards against abuse of Section 294 demonstrates that the right not to be subjected to a cruel, inhuman or degrading punishment is not impaired as little as is possible or as is reasonably possible.
236. Finally the potentially severe physical and psychological consequences of a juvenile whipping violates both the minimum impairment condition and the requirement of proportionality between the effects of the measure and the objective being striven for. - no -
S. JUVENILE WHIPPING NEGATES THE ESSENTIAL CONTENT OF THE RIGHT
237. Because the right not to be subjected to a cruel, inhuman or degrading punishment is a far more specifically described right than for example the right to access for information contained in Section 23 of the Constitution, it is submitted that it follows almost as self- evident that if juvenile whippings constitute cruel, inhuman or degrading punishment the imposition thereof negates the essential content of the right not to be subjected to such punishment. - Ill -
T. JUVENILE WHIPPINGS ARE NOT NECESSARY
238. It is clear that the test for "necessity" must be much stricter than that postulated for "reasonable and justifiable". If this Court should find therefore that the State surmounts the hurdle of "reasonable and justifiable0 it is submitted, for all the reasons advanced above that the arguments for juvenile whipping, such as they are, do not make out a case of necessity. This is particularly so in the light of:
the wide range of sentencing alternatives now available;
the proven lack of efficacy of the punishment;
the increasing tendency in this country, even prior to the enactment of the Constitution, to impose judicial whippings only in ever more limited circumstances; and
the fact that numerous countries, many with criminal justice systems less developed than ours, manage their social problems without recourse to juvenile whippings.
239. Insofar as juvenile whippings violate children's rights there is in fact a further test which the State must meet in order to justify the limitation of such right. Section 30(3) provides that "in all matters concerning such child his or her best interest shall be paramount". It is - 112 -
"submitted therefore that in the instant case the State "-must discharge the onus of showing that juvenile whippings are in the best interests of the child but that this onus has not been met.
240. Finally it should be noted that the State in the form of the Ministry of Justice has given notice that it intends to legislate for the abolition of corporal punishment. In this regard see Annexure "B" hereto a press clipping dated U January 1995. This fact together with South Africa's signing of ICCPR and the Convention on the Rights of the Child are further indications of the growing consensus of opinion within this country that corporal punishment by organs of the State can no longer be justified. - 113
U. SECTION 241(8) OF THE CONSTITUTION
241. Subsection 241(8) of the Constitution is of significance in determining whether the Constitution is applicable to the cases under consideration. The provision reads as follows ;
"All proceedings which immediately before the commencement of this Constitution were pending before any court of law ... exercising jurisdiction in accordance with the law then in force, shall be dealt with as if this Constitution had not been passed : Provided that if an appeal in such proceedings is noted or review proceedings with regard thereto are instituted after such commencement such proceedings shall be brought before the court having jurisdiction under this Constitution..."
242. The interpretation to be given to ss241(8) has been considered by the different divisions of the Supreme Court in a number of reported jugdments, resulting in widely diverging conclusions. See :
Qozeleni v Minister of Law and Order and Another 1994(3) SA 625 (E) at 638 D - 640 A S v Sixaxeni 1994(3) SA 733 (C) at 735H - 737J S v Lombard en 'n Ander 1994(3) SA 776 (D at 782H - 783F S v Makwanyane en 'n Ander 1994(3) SA 868 (A) at 873D S v Smith and Another 1994(3) SA 887 (SE) at 891J - 892F S v Williams and Others 1994(4) SA 126 (C) at 136F - 138G S v Majavu 1994(4) SA 268 (Ck) at 292 A-F S v Saib 1994(4) SA 554 (D) at 558 E - 560 G S v Shuma and Others 1994(4) SA 583 (E) at 589G - 590A - 114 -
r" S v Ndima and Others 1994(4) SA 626 (D) at 627 I - 631J "~ S v Coetzee and Others 1994(2) SACR 791 (W) at 795 H - 796 I.
243. A line of decisions of the Eastern Cape Division of the Supreme Court holds that s241(8) relates only to jurisdiction."159 The Cape Supreme Court has drawn a distinction between procedural and substantive law, finding that s241(8) bars the implementation of procedural but not substantive Constitutional rights in pending proceedings.160 The other reported judgments161 have interpreted the provision as meaning that pending proceedings should be finalised as if the Constitution had not been passed.
244. The approach adopted by the Eastern Cape Division of the Supreme Court is consistent with a generous and purposive interpretation of s241(8). It is respectfully submitted that the reasoning of Froneman J in Qozeleni is persuasive :
"That $241(8) is open to the interpretation given to it by the magistrate is not really open to doubt. However, if the meaning given to it by the magistrate is accepted, the proviso contained in if, relating to the jurisdiction of a Court having appeal or review powers after the commencement of the Constitution, has no logical or rational connection to the preceding part of the provision. This seems to suggest that the first part also only relates to the question of jurisdiction. The reference to courts of law 'exercising jurisdiction in accordance with the law then in force' ... in
159 The cases are Qozeleni Smith, Majavu and Shuma.
160 The Williams and Sixaxeni decisions (although the point was not decided in the latter case).
161 Barring Makwanyane, where the interpretation of s241(8) was raised but not decided. - 115 -
the first part also lends some support to this conclusion. Although S24K10) also deals with, inter alia, the jurisdiction of courts of law, it seems to be directed more to the substantive competence of those courts, whilst $241(8) seems to make provision for the continued territorial jurisdiction of courts in pending proceedings; an interpretation which would then be entirely consistent... with the proviso contained in the latter part of the section. The crucial question, however, is : which interpretation fits best with the fundamental concerns of the Constitution. In my view, there can be little doubt that on this score the interpretation favoured by the magistrate will fare second best. Proceedings instituted before 27 April 1994 may still take a long time before they are finally brought to trial, and may taken even longer to be finalised if taken on appeal. It is not inconceivable that some pending matters will only be finalised after the period of two years within which the Constitutional Assembly is required to pass the final constitutional test ($73(1)). The Constitution is envisaged as a bridge from a despairing past to a hopeful future, not as an extended bypass to the old road to prevent one from ever getting to the bridge. One can take any one of the fundamental rights set out in chap 3 of the Constitution and rhetorically ask whether it is consistent with the inerent values or objects of the Constitution that their content be negated for any period after 27 April 1994. Surely not."lo2
245. It is respectfully submitted that the Williams judgment draws a distinction between procedural and substantive rights that is not readily apparent from the wording of s241(8) and which will be difficult to apply in practice. 163
246. The potential problems can be illustrated in relation to the right of appeal in s25(3)(h) of the Constitution. Taken at a low level of
162 Qozeleni, 639 C-H.
163 On the difficulty in distinguishing between substantive and procedural rights, see: Schmidt, Bewysreg (3rd ed) 1989, pp 5-7 Reference re s94(2) of the Motor Vehicle Act (1986) 24 DLR (4th) 536 (SCC), 545 - 546. - 116 -
generality, this would be regarded as a procedural'- right. Considered at a higher level of generality, it is an aspect of the substantive right to freedom and security of the person.
4 - 117 -
V. CONCLUSION
247. In the premises we submit that the institution of juvenile whippings, as provided for by Section 294 of the Criminal Procedure Act No. 41 of 1977 should be declared unconstitutional by this Court in terms of Section 98(5) of Act 200 of 1993 with immediate effect.
11/ i LEE BOZALEK
P. HATHORN
Counsel for the Juvenile Accused
Chambers CAPE TOWN
February 1995