DOCSLIB.ORG

In the Constitutional Court of South Africa

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
In the Constitutional Court of South Africa IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA CASE NO: CCT/20/94 DATE OF HEARING: 24.3.95 IN RE: THE STATE versus 1. H WILLIAMS 2. J KOOPMAN 3. T MAMPA 4. F ADONIS (G PAPIER) 5. J THOMAS (J GOLIATH AND S WITBOOI) STATE'S HEADS OF ARGUMENT l. INTRODUCTION (a) In S v Williams and 5 similar cases 1994 (4) SA 126 (C) at 140 B the Full Bench of the CPD referred the "constitutionality of Sec 294(1) of Act 51/1977 to the Constitutional Court". (See also page 23 of Vol I of the Record) (b) The first 3 cases supra were sentenced to juvenile whippings in terms of Sec 294(1) of Act 51/1977 (The "Procedure Act") plus periods of imprisonment which were suspended in terms of Sec 294(1) (b) of the [2/...] [2] Procedure Act. All 3 cases are subject to automatic review because the terms of imprisonment exceed 3 months. Cases 4 and 5 were also sent on automatic review because Adonis and Thomas were sentenced to longer than 3 months imprisonment (Sec 302(1)(a)(i) of the Procedure Act) whereas Papier (accused no 1 in the Adonis case) and Goliath and witbooi (accused no's 2 and 3 in the Thomas case) were sentenced to juvenile cuts, which cuts are not reviewable. (c) The Magistrate at Vredenburg submitted the 1st case supra (Williams^ for special review in terms of Sec 304(4) of the Procedure Act, although it is a case that is subject to automatic review. He has expressed doubts as to whether his sentence of 5 cuts is a competent one in the light of the decision in Ex parte Attorney-General, Namibia: In re Corporal Punishment by Organs of the State 1991 (3) SA 76 (NmSC). (d) The following schedule indicates how part of the problem arose: ACCUSED AGE DATE OF DATE OF DATE OF OFFENCE TRIAL SENTENCE WILLIAMS (18) 25.2.94 14.3.94 5.5.94 KOOPMAJJ (17) 6.3.94 29.3.94 4.5.94 MAMPA (18) 19.3.94 23.3.94 9.5.94 PAPIER (16) 16.3.94 18.3.94 6.5.94 GOLIATH (13) and 15.2.94 19.4.94 19.5.94 WITBOOI (11) (e) The Constitution of the Republic of South Africa Act, no 200/1993 (the "Constitution Act") came into effect on 27.4.94 (Section 251(1)). (f) The abovementioned person were thus sentenced after the Constitution Act came into operation. [3?...] [3] (g) The following questions now arise: IN THE INSTANT CASES OF THE 5 ACCUSED (i) has the Constitution Act repealed or amended Sec 294 of the Procedure Act? (See para 2 in£ra) (ii) if it has could the magistrates nevertheless have imposed the sentences of cuts because the provisions of Sec 241(8) of Act 200/1993 permit it? (See para 3 infra.) (iii) if it has not repealed or amended the Procedure Act are these particular sentences nevertheless incompetent because they are inconsistent with the spirit and objectives of chapter 3 of the Constitution Act (often known as the Bill of Rights)? (See para 4 infra) GENERALLY is corporal punishment per se unconstitutional? 2. HAS THE PROCEDURE ACT BEEN AMENDED OR REPEALED? 2.1 STATUTE LAW (a) Sec 230(1) of the Constitution Act provides that "the laws mentioned in Schedule 7 are repealed to the extent set out in the third column. >• [4/...] [4] (b) Schedule 7 of the Constitution Act makes £to mention of the Procedure Act at all. (c) There has thus been no formal or specific repeal or amendment as we traditionally know it. (d) The Constitution Act itself has contradictory provisions relating to other Acts or laws which are inconsistent with it. See: (i) Sections 4 and 7(1) contra (ii) Sections 229, 230 and 241(1), (8), (10). (e) At first blush it seems as if Sections 4 and 7(1) would override Sec 294 of the Procedure Act. (f) But Sec 4(1) has a proviso: "unless otherwise provided expressly or by necessary implication in this Constitution ..." (g) It is submitted that Sec 241(1), (8) and (10) fall within the terms of the proviso. (h) See also Sec 103(2). (i) See also Sec 12(2) of the Interpretation Act (33/1957) . 2.2 CASE LAW When a penal provision has been repealed or amended during the course of a trial the case law can be broadly divided into the following categories: [5/!..] [5] (a) When the new penalty has been increased such penalty will not be retrospective, and the accused is sentenced to the punishment which was applicable on the date of the offence - p v* Mazibuko 1958 (4) SA 353 (A) at 356/357 B vs Sillas 1959 (4) SA 305 (A) at 308/311 (b) However, when the penalty has been decreased the accused is entitled to the benefit thereof on the date of his sentence, on the grounds of public policy and fairness - s vs innes 1979 (1) SA 783 (C) at 786/789 Approved by the Appellate Division in: PrOkureur-qeneraalr Noord K**p vs Hart 1990 (1) SA 49 (A) at 55/56 (c) If the trial has proceeded to its completion even though the Act upon which its prosecution was based has been repealed, or amended, and the sentence is otherwise in order, the Appeal Court will not replace it with a sentence that did not exist at the time - R vs Mpetha 1985 (3) SA 702 (A) at 708/709 s vs Crawford 1979 (2) SA 48 (A) at 56 B (d) But if the sentence (under the "old" Act) is set aside for any reason (such as being inappropriate or shocking etc) then any new penalty that was not available at the date of sentence can now be considered - [6/...] [6] S vs Mpendokana 1987 (3) SA 20 (C) (also approved of in Prokureur~generaal, Noord Kaap vs Hart, supra at 56 A) S vs R 1993 (1) SA 476 (A) at 484/485 (The ratio being that the "old sentence has been "vernietig" on appeal, and thus "vonnis (van meet af oor) besin moet word en dat die tans beskikbare vonnisopsies oorweeg kan word" ). (my underlining) (In S vs R the option of correctional supervision had not existed at the time of sentence, but by the time the Appellate Division was seized with the matter it was one of the "tans beskikbare vonnisopsies"). 2.3 SUBMISSIONS ON THIS ASPECT OF REPEAL/ AMENDMENT (a) The Constitution Act - (i) has not specifically amended/repealed Sec 294 of the Procedure Act; (ii) provides for the continuation of present Acts, until amended or repealed by a "competent authority"; (iii) has not provided for an alternative punishment in the place of punishment in terms of Sec 294 of the Procedure Act (nor any other punishments, for that matter); [7] (iv) has thus not amended or repealed the Procedure Act. (b) Even should this Honourable Court find that Sec 294 has been repealed, the Interpretation Act and the case law (supra) provide for the imposition of punishments that were available at the time of the commission of the offences (i.e.) the punishments provided for by Sec 294 of the Procedure Act (S vs Mpetha. S vs Crawford supra), unless this Court interferes with the sentences, in which case "tans beskikbare vonnisopsies" can be considered (S vs Mpendokana, S vs R supra). (c) If these submissions are correct, and on the further assumption that the sentences are otherwise in order, this means that: (i) the sentences were competent; and (ii) should be confirmed as being in accordance with justice. 3. SECTION 241(8) OF THE ACT (a) This section reads as follows: "All proceedings which immediately before the commen- cement 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 ..." [8/'.. ] y.'v '•>. w* *^f3S!»!g^:'isrri»^g?*g^^ [8] (b) The State agrees with the Accuseds' broad description (para 243 of their heads of argument) of the directions taken by the various Provincial Divisions in their interpretations of this Section. (c) The Accused urge this.. Honourable Court to follow Oozeleni v Minister of Law and Order and another 1994 (3) SA 625 (E) at 639 C (see para 244 of their heads of argument). (d) COMMENTS ON OOZELENI (i) ' Froneman J's language is couched in such terms that it is clear that he too is unsure of the real meaning of the section; (ii) In common with many domestic and overseas judgements on the various Bills of Rights, the Learned Judge indulges in meaningless but catchy language (". a bridge from a despairing past to a hopeful future, not as an extended bypass ...") (iii) In our respectful view such flowery language exaggerates and distorts the true meaning of the Constitution, and overlooks such basic matters as the interpretation of statutes. Van Diikhorst J (in Kalla and another v The Master and others 1995 (1) SA 261 (T) at 268 F) labels Froneman J's remarks as "sweeping generalisations", and on p 269 B Van Diikhorst J says the following: "The Constitution does not only deal with lofty ideals and principles. It has many provisions on mundane matters- The [9/...] '-«•>*-<- YTVa t^,'i [9] transitional arrangements in Sections 234 - 247 are some of them.
Load more

Recommended publications
  • S V Chokuramba (CCZ 10-2019) (Corporal Punishment
    Judgment No CCZ 10/19 Constitutional Application No. CCZ 29/15 REPORTABLE (10) THE STATE v WILLARD CHOKURAMBA JUSTICE FOR CHILDREN’S TRUST INTERVENING AS AMICUS CURIAE ZIMBABWE LAWYERS FOR HUMAN RIGHTS INTERVENING AS AMICUS CURIAE CONSTITUTIONAL COURT OF ZIMBABWE CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, HLATSHWAYO JCC, MAVANGIRA JCC, BHUNU JCC, UCHENA JCC & MAKONI AJCC HARARE, NOVEMBER 12, 2015 & APRIL 3, 2019 J Uladi, for the State O Zvedi, for the Attorney-General T Biti, representing Justice for Children’s Trust D Hofisi, representing Zimbabwe Lawyers for Human Rights T Mpofu, as amicus curiae MALABA DCJ: INTRODUCTION DISTRIBUTED BY VERITAS e-mail: [email protected]; website: www.veritaszim.net Veritas makes every effort to ensure the provision of reliable information, but cannot take legal responsibility for information supplied. 2 Judgment No CCZ 10/19 Constitutional Application No. CCZ 29/15 The constitutional matter before the Constitutional Court (“the Court”) for determination is whether s 353 of the Criminal Procedure and Evidence Act [Chapter 9:07] (“the Act”) is constitutionally invalid. The section authorises the imposition of a sentence of moderate corporal punishment on a male person under the age of eighteen years who is convicted of any offence. The matter came to the Court by way of the procedure for confirmation of orders concerning the constitutional invalidity of any law or any conduct of the President or Parliament made by another court. The High Court made an order declaring s 353 of the Act constitutionally invalid on the ground that it contravenes s 53 of the Constitution of Zimbabwe Amendment (No.
    [Show full text]
  • The Legal Significance of Human Dignity
    The legal significance of human dignity AC STEINMANN 10375082 Thesis submitted in fulfillment of the requirements for the degree DOCTOR OF LAWS at the Potchefstroom Campus of the North-West University Promoter: Prof F Venter November 2016 The research for this study was concluded in November 2016. The study reflects the legal position in South Africa as of this date. i ACKNOWLEDGEMENTS This thesis was concluded with the academic and emotional support from different role-players during the course of this study. I am deeply indebted to the following persons and institution for their help and support: Prof Francois Venter, my promoter, for his belief in me, his guidance, constructive criticism and ever-present contribution to my understanding of human dignity, and for his generous financial assistance Hennie Oosthuysen, my husband, for his unwavering support, interest, encouragement and endurance Mariet and Christian my children, for their constant motivation, support and refusal to let me abandon the studies, and especially Mariet for her help with editing and all else Kobus and Johanna, my parents, who taught me to read and who provided me with opportunities for learning and education Personnel and staff at NWU (Vaal) library, for their help with inter-library loans Alan Brimer, for his advice and immaculate proof-reading Petra Gainsford, for her editing and advice My friends and family, for their interest and support ii PUBLICATIONS RESULTING FROM THIS THESIS Steinmann AC "Law and human dignity at odds over assisted suicide" November 2015 De Rebus 24-26 Steinmann AC "The Core Meaning of Human Dignity" 2016 (19) PER 1- 32 iii ABSTRACT The meaning of human dignity has been elusive since its recognition by the Stoics in 128 B.C.
    [Show full text]
  • Southern African Perspectives on Banning Corporal Punishment –​ a Comparison of Namibia, Botswana, South Africa and Zimbabwe
    chapter 10 Southern African Perspectives on Banning Corporal Punishment – A Comparison of Namibia, Botswana, South Africa and Zimbabwe Julia Sloth- Nielsen 1 Introduction This chapter reviews recent judicial and legislative developments concerning steps towards – and against – the abolition of corporal punishment in four closely connected southern African jurisdictions: South Africa, Namibia, Bo- tswana and Zimbabwe. Not only are these countries neighbours, they share a common legal heritage as recipients of a blend of Roman Dutch law and En- glish law and, in the case of Namibia, the country was, until independence in 1990, a protectorate of South Africa with laws and institutions in common. Hence, all countries under discussion inherited from English law the ‘reason- able chastisement’ defence available to parents utilising physical force against their children. In short, this meant that charges of assault could be countered with the common law defence that the parent was merely exercising legiti- mate parental authority. Although the scope of the application of the defence did narrow to exclude the most egregious forms of abuse in recent decades, in the face of mounting evidence of child abuse and changing social norms, it remained intact. This was the case even in the face of developing legislative measures to counter child abuse in various welfare and protection statutes in all of the four countries at defined points in the 20th century.1 The chapter dissects the legislative developments (in the case of Botswa- na and Namibia and South Africa), and judicial developments (Zimbabwe and South Africa) relating to corporal punishment, with the chief focus be- ing corporal punishment in the home and corporal punishment as a judicial sanction for criminal offending.
    [Show full text]
  • Protecting Human Rights Through a Constitutional Court: the Case of South Africa
    Fordham Law Review Volume 66 Issue 2 Article 8 1997 Protecting Human Rights Through a Constitutional Court: The Case of South Africa Brice Dickson Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons Recommended Citation Brice Dickson, Protecting Human Rights Through a Constitutional Court: The Case of South Africa, 66 Fordham L. Rev. 531 (1997). Available at: https://ir.lawnet.fordham.edu/flr/vol66/iss2/8 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. Protecting Human Rights Through a Constitutional Court: The Case of South Africa Cover Page Footnote Professor of Law, University of Ulster, Northern Ireland. The author gratefully acknowledges financial assistance from the Winston Churchill Memorial Trust and the British Academy. He also wishes to thank the staff of the Registrar's Office at the Constitutional Court for facilitating his research. This article is available in Fordham Law Review: https://ir.lawnet.fordham.edu/flr/vol66/iss2/8 PROTECTING HUMAN RIGHTS THROUGH A CONSTITUTIONAL COURT: THE CASE OF SOUTH AFRICA Brice Dickson* INTRODUCTION T HIS article explores the South African Constitutional Court's early record in protecting human rights. After considering the or- igins of the Court and the jurisdiction conferred on it first by the In- terim Constitution of 1994 and then by the Constitution of 1996, this article summarizes the provisions of those constitutions which protect human rights.
    [Show full text]
  • Sentencing in Botswana
    SENTENCING IN BOTSWANA: A COMPARATIVE ANALYSIS OF LAW AND PRACTICE by ELIZABETH NYAWIRA MACHARIA Submitted in fulfilment of the requirements for the degree LLD In the Faculty of Law University of Pretoria FEBRUARY 2016 SUPERVISOR: PROFESSOR ANNETTE VAN DER MERWE i DECLARATION I, Elizabeth Nyawira Macharia, hereby declare that this thesis is my original work and it has not been previously submitted for the award of a degree at any other university or institution. Signed: ________________________________________________ Date: __________________________________________________ Place: _________________________________________________ ii DEDICATION For my children Kgotla Zachary Raha Khumo Tashatha Ng’endo Keseitse Neema Mmabotho Yamasa Njeri Sechaba Macharia iii ACKNOWLEDGEMENTS The completion of this work has only been possible through the grace of God in whom all efforts, and particularly the most difficult tasks, find meaning. He has made it possible for me to complete this thesis amidst the many demands of family and professional life. I am indebted and grateful to my supervisor Prof. Annette van der Merwe whose constant encouragement assisted me immensely. Throughout this research, Annette gave me thoughtful insights and directed me to relevant materials. Her guidance and patience has been invaluable to me. She has been instrumental in helping me reach a long-held personal and professional milestone. A heartfelt ‘thank you’ to you Annette. The financial support of the African Academics Program of the Faculty of Law, University of Pretoria has without doubt made this journey possible. Thank you to UP for providing a meaningful and efficient way to enable African academics like me to work and study. I would like to express my gratitude my colleagues in the Faculty of Social Science and in the Department of Law at the University of Botswana for their encouragement and support.
    [Show full text]
  • Constitution of the RSA, 1993. It Is Concluded That Ifcorporal
    DOCUMENT RESUME ED 379 760 EA 026 503 AUTHOR Prinsloo, Justus TITLE Corporal Punishment in Schools and Fundamental Human Rights: A South African Perspective. PUB DATE Nov 94 NOTE 22p.; Paper presented at the Annual Meeting of the National Organization on Legal Problems of Education (40th, San Diego, CA, November 17-19, 1994). PUB TYPE Speeches/Conference Papers (150) Viewpoints (Opinion/Position Papers, Essays, etc.) (120) EDRS PRICE MFO1 /PCO1 Plus Postage. DESCRIPTORS Civil Liberties; *Constitutional Law; *Corporal Punishment; Court Litigation; *Discipline Policy; Elementary Secondary Education; Federal Legislation; *Foreign Countries; Human Dignity IDENTIFIERS *South Africa ABSTRACT In many western countries, corporal punishment has been abolished as a form of punishment in criminal trials and in schools. Under South African common law, persons entitled to enforce discipline may inflict corporal punishment within certain guidelines established by the Supreme Court. For the first time in the Republic of South Africa (RSA), the Constitution of the RSA, 1993, contains a chapter on all citizens' fundamental human rights. Section 11(2) provides for a general prohibition of cruel, inhuman or degrading treatment or punishment. The question is whether section 11(2) will be applied to corporal punishment in general and to schools, in particular. This paper describes the constitutional provisions pertaining to corporal punishment in Namibia, Zimbabwe, Germany, Canada, and the United States. It also discusses some South African statutes dealing with corporal punishment and Chapter 3 of the Constitution of the RSA, 1993. It is concluded that ifcorporal punishment in schools is declared to be cruel, inhumane, or degrading, and thus unconstitutional, educators will have to undergo a paradigm shift in their views of school discipline.
    [Show full text]
  • Childhood Vulnerabilities in South Africa: Some Ethical Perspectives
    Jan Grobbelaar & Chris Jones (eds). Childhood Vulnerabilities in South Africa: Some Ethical Perspectives. Stellenbosch: African Sun Media https://doi.org/10.18820/9781928480952/03 Copyright 2020 African Sun Media and the editors Jan Grobbelaar & Chris Jones (eds). Childhood Vulnerabilities in South Africa: Some Ethical Perspectives. Stellenbosch: African Sun Media CHAPTER 3 The contentious issue of corporal punishment in South Africa Jan Grobbelaar & Chris Jones https://doi.org/10.18820/9781928480952/03 Copyright 2020 African Sun Media and the editors Jan Grobbelaar & Chris Jones (eds). Childhood Vulnerabilities in South Africa: Some Ethical Perspectives. Stellenbosch: African Sun Media CHILDHOOD VULNERABILITIES IN SOUTH AFRICA: SOME ETHICAL PERSPECTIVES If a child can’t read … we teach, If a child can’t spell … we teach, If a child can’t swim … we teach, When a child can’t behave … we punish Greg Jansen and Rich Matla 66 https://doi.org/10.18820/9781928480952/03 Copyright 2020 African Sun Media and the editors Jan Grobbelaar & Chris Jones (eds). Childhood Vulnerabilities in South Africa: Some Ethical Perspectives. Stellenbosch: African Sun Media CHAPTER 3 Introduction This chapter will focus on how children should be treated and raised in a culture where the distinctions between discipline and punishment have been blurred for decades. Why should a rights conception of discipline matter? The chapter will navigate these and other issues when it comes to disciplining children in a democratic, but often violent society. It will firstly attend to the legal framework for discipline in South Africa, especially regarding school discipline. Then it will describe the current situation in South Africa and also look at recent developments regarding corporal punishment and the continuing struggle against violence that children experience and are exposed to on a daily basis.
    [Show full text]
  • Llm Dissertation Final
    The Unreasonableness of ‘Reasonable Chastisement’ By Kelly Paula Williamson Submitted in partial fulfilment of the requirements for the degree LLM Private Law In the Faculty of Law, University of Pretoria Date: 2019/10/31 Supervisor: T. Boezaart 1 Table of Contents Chapter 1: Introduction ............................................................................................ 4 1.1 Topic ............................................................................................................ 4 1.2 Background and relevance of study ........................................................ 4 1.3 Research question ..................................................................................... 6 1.4 Methodology ............................................................................................... 6 1.5 Limitations ................................................................................................. 7 1.6 Structure of the thesis .............................................................................. 7 Chapter 2: The common law defence of ‘reasonable chastisement’ and South African law .............................................................................................................. 10 2.1 Terminology .............................................................................................. 10 2.2 The origin of the common law defence of ‘reasonable chastisement’ 11 2.3 The content and boundaries of the common law defence ................... 11 2.4 The eradication of corporal punishment
    [Show full text]
  • Corporal Punishment Report Outline
    1 No more cracking of the whip: Time to end corporal punishment in Sudan March 2012 2 Credit for artwork: Mohamed Abbakar 3 Table of Contents I. Introduction..................................................................................................... 5 II. Sudanese law and practice ........................................................................ 8 1. Law ................................................................................................................ 8 1.1. History ................................................................................................. 8 1.2. Current legal framework ...................................................................... 9 1.3. The legal framework for the punishment of whipping ........................ 11 1.4. Findings ............................................................................................. 12 2. Practice ....................................................................................................... 13 3. The problematic nature of whipping as applied in Sudan ............................ 16 III. International standards ............................................................................. 18 1. Sudan’s treaty obligations ........................................................................... 18 2. The prohibition of corporal punishment under international law .................. 18 2.1. Treaty law .............................................................................................. 18 2.1.1. Sources .....................................................................................
    [Show full text]
  • 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.
    [Show full text]
  • Acta Juridica 15
    S v Williams: A springboard for further debate about corporal punishment ANN SKELTON* In an early judgment of the Constitutional Court, S v Williams, Justice Langa found that judicial whippings were unconstitutional because they violated young offenders’ rights to dignity and humane treatment. Former Chief Justice Langa was also a member of the unanimous court that found the law prohibiting corporal punishment in schools to be a reasonable and justifiable infringement of their parents’ right to religious freedom. However, s 12 of the South African Constitution guarantees everyone the right to be protected from all forms of violence, either from public or private sources. This contribution considers how the court might deal with a challenge to the constitutionality of the common-law defence of reasonable chastisement, which permits corporal punishment of children by their parents in their own homes. I INTRODUCTION Whipping of young offenders was a major instrument of crime control during the apartheid era. During the early 1990s the government was doling out 35 000 judicial whippings every year. In an early judgment of the Constitutional Court, S v Williams and Others,1 Langa J (as he then was) found that judicial whippings were unconstitutional because they violated young offenders’ rights to dignity and exposed them to cruel, inhuman or degrading treatment. The judgment eloquently pointed out that children, no less than adults, have the right be treated with dignity and humanity – indeed, their rehabilitation and development depends on it. The state, as the potent, omnipresent teacher should not demonstrate that violence is a solution. Former Chief Justice Langa was also a member of the unanimous court in Christian Education SA v Minister of Education2 which found the law prohibiting corporal punishment in schools to be a reasonable and *Professor and Director of the Centre for Child Law, University of Pretoria; BA LLB (Natal) LLD (Pretoria).
    [Show full text]
  • FREEDOM of RELIGION SOUTH AFRICA Applicant And
    IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA CASE NUMBER: CCT 320/17 In the matter between: FREEDOM OF RELIGION SOUTH AFRICA Applicant and MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT First Respondent MINISTER OF SOCIAL DEVELOPMENT Second Respondent NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS Third Respondent YG Fourth Respondent THE CHILDREN’S INSTITUTE Fifth Respondent THE QUAKER PEACE CENTRE Sixth Respondent SONKE GENDER JUSTICE Seventh Respondent APPLICANT’S HEADS OF ARGUMENT TABLE OF CONTENTS INTRODUCTION .......................................................................................................................... 2 APPLICATION FOR STANDING AND LEAVE TO APPEAL .................................................. 3 REASONABLE AND MODERATE PHYSICAL CHASTISEMENT ......................................... 7 WHETHER THE COURT A QUO SHOULD HAVE ENGAGED THE CONSTUTIONAL ISSUE? .......................................................................................................................................... 13 WHETHER THE DEFENCE CONTRAVENES INTERNATIONAL OBLIGATIONS? .......... 19 - 2 - WHETHER THE DEFENCE VIOLATES THE CONSTITUTION? .......................................... 22 RELEVANT CASE LAW ............................................................................................................ 28 UNREASONABLE AND UNJUSTIFIABLE LIMITATION OF PARENTAL RIGHTS ......... 33 UNINTENDED CONSEQUENCES ............................................................................................ 37 CONCLUSION ............................................................................................................................
    [Show full text]