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Constitutional Court Case 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.
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