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(i) has the Constitution Act repealed or amended Sec 294 of the Procedure Act?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. In respect thereof one would do well to bear in mind that the question to be asked still is, as it has always been: what did the draftsmen have in mind? What does their instruction mean? We may have a new ball game but the goal is still the same, namely to determine the intention of the Legislature. It follows that one must start with the words used. The rules to be applied in case of ambiguity have not evaporated or been abolished. They form part of the law of the land, which has not been abrogated by the Constitution. See Section 33(3).

The correct approach should therefore be to determine whether the wording of Section 241(8) is ambiguous. If it is, the rules of interpretation are still the useful tools of yore. They may not be discarded. Each word in a statute should be afforded a meaning."

(iv) Oozeleni overlooks two basic matters, namely, firstly: pending matters are usually disposed of according to the law applicable to the matter when it was instituted; and secondly: the section refers specifically to "Transitional Arrangements", and Sec 241(8) provides that pending matters "shall be dealt with as if this Constitution had not been passed.11

In Bell v Voorsitter van die Rasklassifik- asieraad 1968 (2) 678 (A) at 684 D - E The following was said: [10/...] [10]

"Die aanvaarding as deel van ons reg van die reel dat waar 'n wetsbepaling terugwerkend of andersins gewysig word onderwyl 'n geding hangende is, die regte van die geding- voerende partye, by ontstentenis van 'n ander bedoeling, volgens die wetsbepalings wat ten tyde van die instelling van die geding gegeld net, beoordeel moet word, blyk dus duidelik te wees."

That this proposition also applies to the interpretation of the Constitution is clear from Van Dijhorst J's judgement in the Kalla matter supra, where he said the following on page 269 G:

"Bearing this approach in mind, due weight should be given to the phrase *all proceedings ... shall be dealt with as if this Constitution had not been passed'. The meaning is plain. It covers the substantive law applicable in pending matters as well as iurisdictional aspects. The proviso to the subsection does not derogate from this meaning. It deals with the second aspect.

Accepting, without deciding, that the words •used in Section 241 (8) are ambiguous, the following considerations are relevant. Had the draftsmen intended retrospectivity, that could have been clearly stated. Instead Section 251(1) clearly states that the Constitution comes into operation on 27 April 1994.

[11/,:..] [11]

There is a presumption against the retrospective operation of statutes. It has its origin in the Roman law and is set out in Codex 1.14.7. It has consistently been applied by our Courts. Curtis v Johannesburg .Municipality 1906 TS 308 at 311; Mahomed NO v Union Government 1911 AD 1 at g; Principal Immigration officer v Purshotam 1928 AD 435 at 443. Even where a statutory provision is amended retrospectively, pending litigation is not affected fin the absence of a contrary intention) . Bell v Voorsitter van die Rasklassifikasieraad en Andere 1968 (2) SA 678 (A). There is no reason to apply a different test to the transitional statutory provisions enacted as part of the Constitution." (my underlining)

See also - S v Sixaxeni 1994 (3) SA 733 (C) at 737/738

(e) By far the majority of Judges are of the opinion that pending cases are disposed of according to the procedure and substantive law applicable at the time of the institution of the matter, as if the Constitution had not been passed:

See:

S v Lombard 1994 (3) SA 776 (T) at 783 C - G Kalla (supra) S v Saib 1994 (4) SA 554 (D + CLD) at 559 E - 560 D S vs Ndima and others 1994 (4) SA 626 (D + CLD) at 631 G - J S v Coetzee and others 1994 (2) SACR 791 (W) at 795 H - 796 I [12/...]

:^^^ [12]

(f) This Honourable Court is urged to follow these cases

(g) The CPD in S v Williams and 5 others (supra) at 136 F - 138 G is of the opinion that a pending case' s procedure remains the same until it is disposed of, but the substantive law is ruled by the Constitution with effect from 27.1.94.

This time of reasoning is in line with S v Marwane 1982 (3) SA 717 (A) at 748 - 754 (which related to Bophuthatswana's - as it then was - Constitution), and which was followed in S v Heita 1987 (1) SA 311 (SWA), but not followed in S v Anaula en andere 1986 (2) SA 540 (SWA).

(h) The State agrees with the Accuseds' submissions that "a distinction between procedural and substantive rights .... is not readily apparent from the wording of Sec 241(8) and which would be difficult to apply in practice." (para 245)

4. ARE THE PARTICULAR SENTENCES NEVERTHELESS INCOMPETENT BECAUSE THEY ARE IN CONFLICT WITH THE AIMS AND OBJECTIVES OF THE BILL OF RIGHTS?

4.1 The answer to this question could depend, it is respectfully submitted, on the following:

(a) What interpretation this Honourable Court is going to place on Sec 241(8). (If the state's submissions are accepted then cuts was a competent sentence) [13/...] [13]

(b) However, this in turn will depend upon this Honourable Court's decision as to whether juvenile cuts in general are constitutional or not.

(c) If cuts are not constitutional then -

(i) are the sentences of the accused invalid; or (ii) would the ruling only apply to cases that commenced after 27.4.93?

(d) This is not merely of academic interest only. It should be noted that with the exception of the accused Williams where the Magistrate ordered the whipping to be suspended, the cuts in respect of all the other accused would already have been carried out, most probably on the same day that the sentences were imposed.

See - R v Mayer 1943 (AD) 389 at 392 S v Pretorius 1987 (2) SA 250 (NC) at 252 I - J

If these sentences are invalid then the magistrates (or the Department of Justice) could be liable for damages. It could surely never have been intended that a sentence imposed in good faith could, retrospectively, have this result.

See the following cases where the striking down of laws paved the way to civil litigation:

[14/...] [14]

Matinkinca + another v Council of State, Republic of Ciskei + another 1994 (4) SA 472 (ck GD) De Welzin v Reqering van Kwazulu en 'n ander 1990 (2) SA 915 (N) Ookose v Chairman, Ciskei Council of State and another 1994 (2) SA 198 (ck GD)

It is respectfully submitted that this is a further strong indication that cases commenced before 27.4.94 must be disposed of according to the law then applicable.

4.2 The State's submissions can be summarised as follows:

(a) Juvenile cuts (as opposed to adult strokes) do not offend any constitutional rights, and the Bill of Rights thus does not enter the picture.

(fc>) Alternatively, even should this submission not be accepted, then as far as the 5 accused are concerned the sentences should not be found to be unconstitutional because -

(i) sound, practical considerations fortify the State's submissions relating to Sec 241(8) of the Constitution Act; and/or

(ii) Section 33(1) of the Constitution Act limits the application of Chapter 3. [The thrust of the State's submissions is here slightly different to those that will be made when dealing with Sec 33(1) in a general sense. Here, the States submissions amount to this: if

[15/...] [15]

this Honourable Court accepts the State's submissions on Section 241(8), then it is reasonable, justifiable and necessary etc. in the case of the 5 accused to limit the application of chapter 3. The ratio for permitting this limitation differs from the ratio when considering whether Sec 33(1) of the Constitutional Act is applicable or not to cuts in general];

(c) alternatively, even if juvenile cuts, when considered in the general sense as a competent sentence, is found to offend chapter 3, then Sec 33(1) of the Constitutional Act limits the application of chapter 3.

4.3 Before dealing more fully with this aspect we would like to make the following preliminary points:

(a) . corporal punishment has been widely condemned for many years, and has recently been declared unconstitutional in neighbouring states (as appears in the Accuseds' heads of argument) on the grounds that it is cruel, degrading and inhumane;

(b) an analysis of most of the South African cases shows that this condemnation has concentrated on adult strokes; (more fully dealt with in para 5(2)(b) infra)

(c) before declaring corporal punishment as being unconstitutional (and we are here concerned with a juvenile whipping) the following should give one pause (and cause) for thought: [16/...] [16]

(i) of the everyday punishments imposed by inferior courts some of them contain an element of cruelty etc. to a greater or lesser degree.

Imprisonment (Section 276(1)(b), (c) and (d) of the Procedure Act): -

being confined in an overcrowded institution and being subject to the prison culture of gangs, assaults and sodomy (male rape) must surely contravene the provision that "no person shall be subject ... to cruel, inhuman or degrading ... punishment."

Correctional Supervision (Section 276(h) and (i)): -

Being under "house arrest" for 2 years; not being allowed out of the house except for employment or religious reasons; not being allowed to drink alcohol - is all this not degrading to the offender who has to bear the scorn of his neighbours?

Committed to an institution (Section 276(l)(e)): -

A reformatory has exactly the same negative influences as a prison except that the inmates are younger.

[17/*..] [17]

A fine (Section 276(l)(f)): -

Even this punishment has a degrading element. A person who has to pay a massive fine may have to liquidate his assets, or if he is allowed to pay his fine in instalments he must regularly go to the Clerk of the Court to pay an instalment.

(ii) the point is, where does one draw the line? No society can allow their prisons (and reformatories and rehabilitation centres) to be closed down on constitutional grounds, thereby allowing hardened criminals to roam the streets.

In the Ex Parte Attorney-General, Namibia case (supra), the question of adult and juvenile whippings was discussed, and the question was mooted as to whether a juvenile whipping could be considered on a different footing or not. Berker C J held that "once one has arrived at the conclusion that corporal punishment per se is ... degrading . . cruel or inhuman ... it does not matter in principle ... (for) the fact remains that any type of corporal punishment (would be unconsti- tutional)11 - para 97 C - D. See also Mohamed A J A' s (as he then was) finding on page 91 D of the report and Korsah J A's finding in S vs Juvenile 1990 (4) SA 151 (ZSC) at 176 C - D. [18/...] [18]

Surely this very same argument can be applied to prisons etc? Is imprisonment for 25 years not cruel, degrading etc? On this argument any imprisonment would thus be unconsti- tutional. In his minority judgement in S v Juvenile at 172 J to 173 A, McNally JA said the following:

"It is, of course, inherently difficult to argue with a value judgment. I can say only that to the extent that corporal punishment of juveniles necessarily involves an element of degradation, I do not regard that element as being of significance. To those who would say: * Once you admit there is an element of degradation that is the end of the matter' , I would answer: xNo; all punishment, including imprisonment, involves and element of degradation. The Constitution does not prohibit all punishment." (my underlining)

(iii) the courts cannot be selective in striking down one punishment and leaving the other one intact when both (or all) infringe the Bill of Rights;

(iv) In the course of his minority judgement in S v Juvenile (supra), McNally JA further said the following at page 170 B: [19] "Attitudes towards corporal punishment are deeply influenced by the emotional and psychological make-up of the people holding those attitudes. The view of the sensitive and articulate minority tends inevitably to be heard more frequently and more persuasively than that of the silent majority. It does not necessarily follow that the former is more * right-thinking' than the latter.11

The fact that corporal punishment horrifies well- educated and civilised judges and academics does not mean to say that the majority of the community agrees with them. An admittedly unscientific poll conducted in 1989 by the Argus on the question of hanging (also widely criticised amongst judges and academics), showed that most readers voted for its retention, and a free vote in Parliament also voted for its retention. The point is that the Courts should be slow to strike down a law when it is not sure whether -

(a) the Court is correctly reflecting the feelings of the broad community;

(b) it is in the community's best interest that the law be struck down.

4.4 When dealing in para 5 (infra) with the State's case for corporal punishment, the submissions making out a case for the proposition that corporal punishment is not hit by the provisions of Constitution will inevitably overlap with the submissions relating to the general question of whether corporal punishment' is per se unconstitutional or not. [20/...] [20]

5. THE CASE FOR CORPORAL PUNISHMENT

5.1 GENERAL OBSERVATIONS

(a) It is emphasised .. that these submissions are intended to make out a case for juvenile whippings only.

(b) The State does not deny that there could be individuals who would suffer the physical and psychological consequences described in paragraphs 177 - 186 of the Accuseds' heads of arguments, but these individuals could be timeously identified by applying proper safeguards, inter alia such as medical examinations (physical and psychological) probation officers reports and the' evidence of the parents.

(c) But can it really be said of the average juvenile offender that cuts would "weaken the sense of shame", or that it would "(weaken his) negotiation and communication skills", or that there would be "feelings of rejection and depression"? Are all these dire consequences not merely generalisations and exaggerations?

(d) These negative psychological consequences could apply equally (if not more) to imprisonment, but there is no talk of abolishing this type of punishment.

(e) It is respectfully submitted that these emotional and dramatic generalisations will be approached with caution, as will the irrelevant description [21/...] [21]

of a whipping that appears in para 45 of the Accuseds' heads of argument. The whipping there described, and the wounds that were inflicted, clearly refer to a whipping similar to adult strokes in this country, and this is not what is presently in issue..

(f) Seen in its proper prospective, and stripped of the emotional generalisations that ascribe the possibility of the most dreadful physical and psychological consequences to some individuals, it is submitted that juvenile cuts is no worse than most males in this country have had inflicted upon them at school, and we know of no case in the Supreme Court or Magistrate's Courts where for example, a physcopath (para 184) has blamed his predicament upon him having being whipped at school or as a consequence of him having committed theft and having had cuts imposed by a court.

(g) If there are such cases of juveniles who have suffered these consequences, they must surely consist of an extremely small minority.

(h) It is submitted that these gravely negative psychological consequences more appropriately describe the consequences of other types of punishment, such as imprisonment. A person incarcerated for life or 25 years (a common sentence now that the death penalty is under threat of abolition) is surely more likely to suffer these psychological consequences than a juvenile who gets his cuts and goes home the same day, yet there is no talk of abolishing imprisonment. ,, * [22/...] [22] (i) The difference between imprisonment and cuts is obviously the physical pain which is suffered in the case of corporal punishment, and in this regard, the following respectful submissions are made:

(i) for the average juvenile the pain is of short duration, whereas 25 years imprisonment is another matter;

(ii) why do some juvenile and their parents request the Court to impose cuts if it is such a terrible punishment? (see infra)

(iii) if a juvenile was to be given a choice between 3 years in a reformatory or 6 cuts, one wonders which option he would choose. We submit that he would choose the latter.

5.2 JUDICIAL CRITICISM OF CORPORAL PUNISHMENT

(a) From para 48 of their heads of argument the Accused quote from various cases where corporal punishment has been criticised.

It is respectfully submitted that an analysis of these cases show the following:

(i) they relate to adult strokes (as the Accused correctly point out) and the judicial

criticism must be seen in thatolight;

(ii) despite such criticism the learned Judges quite often draw a distinction between adult strokes and juvenile cuts. [23/...] [23]

(b) ANALYSIS OF THESE CASES

(i) S v Kumalo 1965 (4) SA 565 (N)

Three accused aged 26, 23 and 22 were sentenced to 5 months and 6 strokes.

(ii) S v Maisa 1968 (1) SA 271 (T)

6 months and 6 strokes imposed on a 36 year old man. Immediately preceding the quotation appears ths following:

"Lyfstraf (behoort) alleen in uitsonderlike gevalle toegepas te word. Vir iemand in of onder die laer twint- igeriare kan dit soms van pas wees omdat dit die Hof in Staat stel om die oortreder uit die tronk te hou. " (my underlining)

(iii) S v Mvute 1985 (2) SA 61

De Wet C J was actually criticising the magistrate for imposing too light a sentence in respect of the adult accused, and it is clear that he was of the opinion, despite his quoted remarks, that strokes should have been imposed. Of the one accused (16 years old) who received 7 cuts, he made no mention at all.

[24./...] [24]

(iv) S v Machwili 1986 (1) SA 156 (N) Sentence - 6 years and 6 strokes

Didcott J (as he then was) said the following at page 157 F, immediately preceding the portion quoted by the Accused:

"Corporal punishment for adults is a matter very different from corporal punishment for juveniles. It is incomparably more severe, more of a physical ordeal. Nor does it have the saving grace which, however distasteful to many all corporal punishment may be, must be recognised in a juvenile caning. I refer to the fact which experience shows that such is often the only practical alternative to incar- ceration in a gaol or reform school. To chastise a juvenile moderately, as his father or school-teacher might do, is more in his interests and, unless his crime is too serious for him to get away so lightly, in society's as well than to deprive him of his liberty and consign him to the company of criminals." (my emphasis)

(v) S v Motsoesoana 1986 (3) SA 350 (N) Sentence - 12 months plus 6 strokes

Page J : The learned Judge criticised the principle of strokes, but said the following on page 352 C: [25/...] [25]

"It must be accepted that, where corporal punishment is imposed in lieu of imprison- ment, it can, in appropriate circumstances, fulfil a •• useful function insofar as it enables the Court to avoid sending the offender to prison." (my underlining)

Milne JP: Whilst agreeing with Page J's judgement "that the time is ripe for a full investigation of the ques- tion of whether corporal punishment for adults should not be entirely abolished" (358 H), he said the follow- ing (358 G):

"There is, in my view, at least one situation where the imposition is justified and that is the case of a juvenile whipping where the only alternative, and I emphasise the word "only", is imprisonment". (my underlining)

The dissenting judgement of Fannin J in the Kumalo case (supra), in the words of the Accused's counsel (para 48), "has become a classic dissenting judgement", and it has been quoted in case after case. [26/...] [26]

Thirion J, in his dissenting judgement in Motsoesoana's case (supra) analyse what Fannin J said, and comes to the conclusion that Fannin J did not say- that corporal punishment does not fulfil any useful deterrent function.

See pages 366 F - 367 H

If Thirion J is correct (and it is submitted that he is) then all those cases that rely on this aspect of Fannin J's judgement have misapplied what he said, and they should be evaluated in this light.

(vi) S v Zimo en andere 1971 (3) SA 337 (T) Per Cillie JP at 337 H:

"Dit word vry algemeen aanvaar dat lyfstraf in sommige gevalle 'n paslike straf is, dat dit as 'n skerp teregwysing soms beter as kort tronkstraf is, veral vir jeugdiges by 'n eerste oortreding, en dat dit dikwels die gewenste uitwerking op die beskuldigde sal he", sowel as op ander wat tot soortgelyke oortredings geneig is. Dit staan egter ook vas dat straf by die besondere omstandighede van die geval moet pas en dat geweld nie altyd met geweld gestraf moet word nie."

j" [27/...] [27]

Per Bekker J at 338 G:

"Afhangende van die erns van die geval is lyfstraf dikwels 'n geskikte straf vir 'n jongman wat geen vorige veroordelings het nie en liefs uit die gevangenis gehou moet word."

(vii) S v Seeland 1982 (4) SA 474 (NC)

Sentence: 4 strokes imposed on a 21 year old accused.

(viii) S v Maseti 1992 (2) SACR 459 (C)

In this case the Court was concerned about an 18 year old accused being sentenced to 5 adult strokes.

(ix) S v Staqqie 1990 (2) SACR 669 (C)

(6 strokes)

(x) S v Vakalisa 1990 (2) SACR 88 (Tk)

Mitchell J said the following at page 94 i:

" I would have thought that it is far more important to keep juveniles out of gaol where the appropriate circum- stances exist, to save them the association with adult convicted criminals, than to shy away from the imposition of a vjuvenile whipping'•" (my emphasis) [28/...] [28]

(xi) S v V en 'n ander 1989 (1) SA 532 (A) (Sentence: 3 years plus 5 strokes)

Although the Appellate Division had misgiving about corporal punishment, the learned Judges nevertheless recognised (at 543 G) that "(so) word (lyfstraf) dikwels aan jeugdigdes opgele om hulle daardeur uit die tronke uit te hou."

(xii) S v Daniels 1991 (2) SACR 403 (C) and S v Baartman 1991 (2) SACR 452 (C)

A sentence of 6 strokes v;as imposed in each case.

(c) S v Juvenile (supra)

The State wishes to quote extensively from the minority judgements of McNally and Manvarara JJA because it is the State's respectful submission that these judgements are more closely related to the realities of criminal justice and juveniles.

P 169 i:

"I do not agree with the generalised statement that any corporal punishment inflicted in terms of a court order is necessarily a contravention of the provisions of Sec 15(1) of the Declaration of Rights in the Constitution of Zimbabwe."

[29/...] [29]

P 170 C et seq:

"I do not agree that because this Court has ruled adult strokes to be unconstitutional, it must follow that juvenile cuts are unconstitutional. Nor, progressing down the scale, does it follow that corporal punishment in schools is unconstitutional, or that smacking a naughty child is ipso facto a violation of that child's fundamental human rights.

In all these matters one is exercising a discretion. One is weighing the advantages against the disadvantages. It is widely accepted that the very terra x inhuman or degrading punishment or other such treatment', which is used in Section 15(1) of the Declaration Rights, involves a value judgement. The Court in Tyrer v United Kingdom (1978) 2 EHRR 1 put it this way:

* In the Court's view, in order for a punishment to be degrading and in breach of art 3, the humiliation or debasement involved must attain a particular level and must in any event be other than that usual level of humiliation referred to in the preceding subparagraph. 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.'

That view was endorsed by the same Court in Campbell and Cosans v United Kingdom (1982) 4 EHRR 293, although the European Commission of [30/...] [30]

Human Rights in Warwick v United Kingdom, reported on 18 July 1986, came very close to saying that corporal punishment is per se degrading. But it did not actually go so far.

I will return later to consider the facts and decisions in those three cases. At present I am concerned only to show that they all accept that a value judgment is involved. In other words, corporal punishment is not necessarily either inhuman or degrading per se. The cases accept that, when properly controlled, the question of inhumanity does not arise. The dispute centres on the word * degrading'.

It seems to me that there is a very clear distinction between the corporal punishment of adults and the corporal punishment of juveniles. A young person is a person whose character is being formed. He or she is by nature open to advice, correction, example and encouragement by parents, teachers, elders and those in authority. An adult's character is already formed, for better or worse.

Of course, these are generalisations. There is no particular magic in the age of 19. Some children may be brutalised by a caning, just as some adults may be brought to their senses by a flogging. But the general and conventional wisdom is that moderate correction by way of corporal punishment may have a reformative effect on children and young persons, whereas corporal punishment on adults is considered likely to have the opposite effect. In any event, adults were normally flogged at the beginning of a long,.-' [31/...] [31] prison sentence which suggests that the purpose of the flogging was always more retributive than correctional.

I would hope and expect that in deciding on the appropriateness or otherwise of a sentence of cuts, magistrates would normally have regard to the physical and psychological robustness of the young delinquent before them.11

P 171 E et seq:

"Why do I say that corporal punishment of young people can, in a general way, be differentiated from corporal punishment of older people?

The first point I have made is that young people are of their nature more open to correction, more malleable than adults. In that sense young people are humble, in the dictionary sense: *Having a low estimate of one's importance, worthiness or merit; marked by the absence of self-assertion or self-exaltation; lowly; the opposite of proud; of lowly condition, rank or estate' (The Oxford English Dictionary).

The point is important because the European Court of Human Rights equates A degrading' with 1 humiliating'. It makes the point in Tvrer (supra) that:

* However, what is relevant for the purposes of Art 3 is that he should be humiliated not simply by his conviction but by the execution of the punishment which is imposed on him.'

[32/...] [32]

Thus one can accept that an adult whose character has already formed and hardened may be adversely affected by punishment which humiliates him (ie forcibly makes him humble). Yet a young person will not be adversely affected by similar punishment because he is accustomed to subordination and open to correction. This * humility' is part of the very nature of youth, however rebellious.

I am in danger of straying into fields of sociology and psychology where I have no expertise. In a sense I am forced into them by being presented with this question. But I can say, as a lawyer of many years of practice, that young people often appear before the courts on charges of doing wicked things, cruel things, irresponsible things, stupid things), thoughtless things. Very often a large element in the offence is their lack of judgment, their lack of experience, their lack of forethought. Sending them to prison achieves nothing and usually does them a great deal of harm; the same can be said of remand homes and reformatories; they cannot pay fine and there is little point in their parents paying it. The imposition of a moderate correction of cuts enables a magistrate or Judge to avoid all these unpleasant alternatives. It enables him to impose a short, sharp, salutary and briefly painful punishment which achieves in very many cases exactly what is required. I must say that in 25 years in the law I have never heard a complaint about the brutality of cuts. Indeed the only comment I have had was from one client who said his headmaster hit much harder than the prison officer. [33/...] [33]

I do not accept that this is an irrelevant consideration. That is why I have laid such stress on the European Court's acceptance of the fact that a value judgment is involved. The European Court has not, to my knowledge, said that all and any violence to the person is wrong in itself. Some Judges have said so. They have been in a minority.

Once a value judgment is involved one is entitled to weigh the pros and cons. And into that balance the value of juvenile cuts as a way of avoiding worse punishments must go. To my mind it is a consideration of enormous weight.

I am not influenced or impressed with the argument that there are some sensitive souls who will suffer psychological trauma as a result of receiving a moderate correction, and on the other extreme that there will be young thugs who will be even further brutalised by such punishment. Nor am I greatly influenced by the spectre of sadistic prison officers dehumanising themselves and debasing their victims by their brutality.

One does not condemn the concept of imprisonment itself as unconstitutional simply because some prisoners may be subjected to inhuman or degrading treatment by cruel prison officers or brutal cell-mates. The answer is not to do away with imprisonment but to weed out cruel prison officers and curb the brutality of cell-mates. The whole penal system is inherently imperfect. We cannot do away with it. We can only strive to improve it.

[34/...] [34]

Similarly"/ unless there is evidence (and it would surprise me if there were) that there is inevitable brutalization and brutality in the imposition of juvenile cuts, I would not agree with a generalised statement that the provisions of Section 330 of the Criminal Procedure and Evidence Act Chapter 5 9 are unconstitutional. Far less would I agree that all corporal punishment is ipso facto unconstitutional.

It will be apparent from what I said that I associate myself with the minority judgment of Sir Gerald Fitzmauirice in the Tvrer case supra. That case involved a sentence of three strokes of the birch imposed on a 15-year-old boy by a juvenile court in the Isle of Man. It is of some interest that the boy (by then an adult) sought to withdraw the case, but was not permitted to do so. It is clear that the Court, while agreeing that a value judgment was involved, came very close to making the value judgment that corporal punishment as such was degrading within the meaning of the term x degrading punishment' as prohibited by the European Convention on Human Rights.

It is, of course, inherently difficult to argue with a value judgment. I can say only that to the extent that corporal punishment of juveniles necessarily involves an element of degradation, I do not regard that element as being of significance. To those who would say: *0nce you admit there is an element of degradation that is the end of the matter', I would answer: "No; all punishment, including imprisonment, involves an element of degradation. The Constitutionrdoes not prohibit all punishment." [35/...] [35]

P 173 G - J:

I think we must face up squarely to the fact that if we outlaw juvenile cuts, the practical consequence of our decision will be that many young men between the ages of 16 and 19 will QO to prison who would not, under the present system, go to prison. It is all very well to say that that is not our concern; that a better system of probation or something similar must be developed. The fact is that we are a country with many demands upon our resources. We are not likely to improve our manpower and transport problems in the Social Welfare Department for many years. Nor am I convinced that even in the most sophisticated countries the probation system works satisfactorily. The number of juvenile delinquents tends to grow faster than the number of probation officers.

I am not able to support an interpretation of the Constitution which will lead to what I think are far worse results than those which flow from the present system. The cure is worse than the disease.

P 174 H - J (per Manyarara JA):

"The two provisions are fully set out in the judgments of the learned Chief Justice and my Brother Gubbay and, as my Brother Gubbay explains, there is a distinction between a xwhipping' under Section 333 of the "Criminal Code as read with the Prison Regulations (FGN 42 of 1956) and a ^moderate correction of cuts' in terms of Section 330(2), which nowhere states [36/...] [36] that a court shall order the juvenile cuts be administered in term of the Prison Regulation's, R v Obert and Others 1968 (2) RLR 99.

In the light of that distinction, which I consider to be clear and important, I can see no reason for declaring Section 330 to be unconstitutional. To my mind, such a ruling is no different from painting Section 330 and Section 333 with the same brush and then, in a single breath, denouncing both as * torture ... or inhuman or degrading punishment'."

P 175 J:

"It is briefly on this basis that I feel that we would be going too far if we struck down Section 330 of the Criminal Code on the ground that it is unconstitutional. Therefore, I would decide the constitutional point against the Appellant." (my underlining)

(d) S vs Ncube and Others 1988 (2) SA 702 (ZSC)

In this mater Gubbay JA referred, inter alia, to two foreign cases which support the states submissions:

P 718 F:

"In Nelson v Hevne 491 F 2d 352 (1974) the United States Court of Appeals (Seventh Circuit) held that, although corporal punishment in juvenile institutions or reformatories is not per se cruel and unusual punishment, the disciplinary beatings at issue in the case, namely the use of a wooden * fraternity paddle' two foot long, one-quarter to [37/...]

... 'jK i ,s-. w; r,i e^a .*<&•*: [37] one-half an inch thick: and six inches wide, upon the buttocks of juveniles between the ages of 12 and 18 years causing painful injuries, constituted cruel and unusual punishment as being disproportionate to the offences, and did not measure up to contemporary standards of decency."

The learned Judge then dealt with Tyer v United Kingdom (1978) 2 EHHR 1. In that case Tyer, aged 15 years, was given 3 cuts with a birch after having to remove his trousers and underpants. He bent over a table and was held down by two policeman. The European Court of Human Rights held this to be "degrading" punishment. The following appears at p 720 J - 721 A:

"35. Accordingly, viewing these circumstances as a whole, the Court finds that the applicant was subjected to a punishment in which the element of humiliation attained the level inherent in the notion of "degrading punishment" as explained at para 3 0 above. The indignity of having the punishment administered over the bare posterior aggravated to some extent the degrading character of the applicant's punishment but it was not the only or determining factor.

The Court therefore concludes that the judicial corporal punishment inflicted on the applicant amounted to degrading punishment within the meaning of Art 3 of the Convention.

The only dissent came from • Sir Gerald Fitzmaurice. It was his opinion that corporal punishment, when applied to juvenile and young offenders under proper restrictions and [38/...] [38] safeguards, did not constitute a breach of art 3 as * degrading' punishment in the same way as it is considered to be in the case of adults (see para 11).

The significance of this decision is that it is implicit in both the majority and minority judgments that the infliction of a whipping upon an adult offender would contravene art 3 as amounting to a * degrading' punishment."

A fuller extract of Sir Gerald Fitzmaurice judgement (pages 23 and 24 of the EHRR report) appears hereunder:

"This is why I could have understood it if the Court had regarded the infliction of the blows on the bare posterior as bringing matters up to the required level of degradation. I would not necessarily have agreed with that view, but it would have been tenable. However, the Court held that this was not a determining element: the punishment was in any event degrading. This means, in effect, that any judicial corporal punishment meted out to a juvenile is degrading an a breach of Article 3. It is this view (in my opinion far too dogmatic and sweeping) that I cannot agree with. That such punishments may be undesirable and ought perhaps to be abolished is, as I have said, quite another matter: they are not ipso facto degrading on that account in the case of juvenile offenders.

12. I have to admit that my own view may be coloured by the fact that I was brought up and educated under a system according to which the [39/...] [39] corporal punishment of schoolboys (sometimes"at the hands of the senior ones - prefects or monitors-sometimes by masters) was regarded as the normal sanction for serious misbehaviour, and even sometimes for what was much less serious. Generally speaking,., and subject to circumstances, it was often considered by the boy himself as preferable to probable alternative punishments such as being kept in on a fine summer's evening to copy out 500 lines or learn several pages of Shakespeare or Virgil. Moreover, these beatings were carried out without any of the safeguards attendant on Mr Tyrer's: no parents, nurses or doctors were ever present. They also not infrequently took place under conditions of far greater intrinsic humiliation than in his case. Yet I cannot remember that any boy felt degraded or debased. Such an idea would have, been thought rather ridiculous. The system was the same for all until they attained a certain seniority. If a boy minded, and resolved not to repeat the offence that had resulted in a beating, this was simply because it had hurt, not because he felt degraded by it or was so regarded by his fellows.

13. In conclusion, I must insist that I am not seeking to maintain that the state of affairs I have just described was necessarily a good one, though it had, and has, many supporters. I am not advocating corporal punishment. I am simply saying that it is not degrading for juvenile offenders - or (to such extent as it is), does not, in the case, involve the level of degradation required to constitute it a breach of Article 3 of the Convention, when inflicted under proper restrictions and safeguards in consequence [40/...] [40]

of a regularly pronounced judicial sentence, traditionally sanctioned for certain offences by the law of the community to which the offender belongs, and by its public opinion. No juvenile is or need feel * degraded' under those conditions.

14. Finally, I would like to advert to the remarks I made in paragraphs 15 and 16 of my Separate Opinion in the IRISH CASE which, mutatis mutandis, are equally applicable to the question of degrading treatment or punishment. The fact that a certain practice is felt to be distasteful, undesirable, or morally wrong and such as ought not to be allowed to continue, is not a sufficient around in itself for holding it to be contrary to Article 3. Still less is the fact that the Article fails to provide against types of treatment or punishment which, though they may legitimately be disapproved of, cannot, considered objectively and in relation to all the circumstances involved, reasonably be regarded without exaggeration as amounting, in the particular case, to any of the specific forms of treatment or punishment which the Article does provide against. Any other view would mean using the Article as a vehicle of indirect penal reform, for which it was not intended." (my emphasis)

5.3 THE RECIDIVIST

Part of the case against cuts is the argument that it serves no useful deterrent function (para 58 of the Accuseds' heads of argument, quoting from Page J' s judgement in S v Motsoesoana^. [41/;..] [41]

As has been submitted previously (5.2 (b)(v) supra), Thirion J, in his dissenting judgement, negates this argument completely, in our respectful view. See page 367 J et seq where he further says the following:

"Be that as it may, the reason why courts are not well placed to gauge the effectiveness of corporal punishment is obvious. It is only the recidivist who appears repeatedly before the courts. The offender who may have benefited from corporal punishment obviously would not make another appearance. There is therefore no means of determining (except by an exhaustive study of the records of the SA Criminal Bureau), the extent of the effectiveness of corporal punishment. The recidivist can hardly serve as a measure because he is usually a person who is best with social, sociological and psychological problems. It is in my view of but little use to concentrate on one particular facet of punishment. The problem should be looked at in its entirety. The role that effective law enforcement plays in the prevention of crime does not seem to me to have received sufficient attention.

It could seem to me that the best way of discouraging crime is to make would-be criminals realise that the chances of getting away with it are slim and that the game is not worth the candle. This can only be done through efficient crime detection and effective punishment. The punitive element in punishment therefore remains important."

[42/...] [42]

On page 368 D and G he says the following:

"My Brother PAGE refers to a number of reports and articles condemning corporal punishment as serving no useful purpose. The only conclusion to which I could come from a reading of various reports and other writings on the subject is that corporal punishment is a subject which is emotionally charged. The approach is invariably subjective and motivated by moral considerations."

"It would seem to me that most of the arguments favouring the abolition of corporal punishment proceed from the moral convictions held on the subject and are unscientific generalisations not based on the results of any impartial scientific investigations.

I am therefore unable to accept that there is any reliable evidence that corporal punishment fulfils no effective rehabilitative or useful deterrent purpose." (my underlining)

5.4 SOCIETY AND THE VICTIM

(a) When one reads (in Thirion J' s words) the "emotionally charged" writings of learned Judges and academics who disagree with corporal punishment, one is struck by the following:

(i) the complete one-sidedness of their deliberations. They write for pages and pages about the possible trauma a few cuts might have on an accused, but no mention of the victim or society is made; [43/-.'. .] [43]

(ii) it seems to be overlooked that the juvenile accused has just been found guilty of a crime, and often a very serious and brutal crime;

(iii) they forget that part of society's contract with the Courts is that offenders will be properly punished and what Schreiner JA said in R v Kara 1961 (1) SA 231 (A) at 236 A is still applicable today:

"While the deterrent effect of punishment has remained as important as ever, it is, I think, correct to say that the retributive aspect has tended to yield ground to the aspects of prevention and correction,. That is no doubt a good thing, but the element of retribution, historically important, is by no means absent from the modern approach. It is not wrong that the natural indignation of interested persons and of the community at large should receive some recognition in the sentences that Courts impose, and it is not irrelevant to bear in mind that if sentences for serious crimes are too lenient, the administration of justice mav fall into disrepute and injured persons may incline to take the law into their own hands." (my underlining)

(b) Schreiner JA's prophesy of the community taking the law into their own hands has indeed come true, and it is common knowledge that "people's [44/...] [44]

courts", often with juveniles as judges and executioners, hold many parts of the country hostage in a reign of terror. There are many reasons for this, but it is submitted that one of the reasons is a perception that the civil courts mete out too light sentences for serious crimes.

(c) In the unreported case of Nortie and Another v Attorney-General, Cape and Another (case no 9125/94), Marais J on 7.2.95 gave the judgement for the Full Bench in a matter relating to Sec 23 of the Constitution. Dealing with the problems of the prosecution of offenders he said the following (which, it is submitted, corroborates the State's submissions, supra)' at pages 18 - 19 of his written judgement:

"The second is to avoid making successful prosecutions of the guilty so difficult to achieve, that society and its police may become either so apathetic and cynical, that insufficiently determined efforts to bring wrongdoers to justice are made, or so indignant and resentful, that the law is taken into their own hands, and the ugly phenomena of summary executions and the modern day equivalents of lynching occur with increasing frequency. These phenomena are not paranoiac imaginings. They are occurring as I write." (my underlining)

(d) A report in the Sunday Times (5.2.95) illustrates this point vividly. Please see the- copy annexed hereto, marked XA'.

[45/...] [45]

(e) This Honourable Court is also reminded of Section 8(1) of the Constitution, namely that "every person shall have the right .... to equal protection of the law." (my underlining)

Society's and the victim's interests must thus enjoy equal consideration with those of the accused. At the moment it seems as if the accused's rights are considered to the exclusion of the rights of all other persons involved in the offence.

5.5 THE MANNER IN WHICH CUTS ARE IMPOSED

(a) It is respectfully submitted that the critics of corporal punishment have allowed their condemnation of the brutality of adult strokes to influence them in regard to juvenile cuts, and they have not really applied their minds dis- passionately to the marked differences between the two.

(b) For instance, Korsah JA said the following on page 176 D of the Juvenile (supra) case:

"I think that any law which compels any person, against his will, to expose his posterior to the gaze of total strangers while blindfolded and strapped to a wooden bench degrades and debases that person ..."

In the same case Dambutshenar C J said the following on page 156 A:

[46/..-..] [46]

"There are not many differences in the execution of ... (adult and juvenile) whipping. Besides the size of the cane .. . the only other difference is that (an adult whipping) is carried out privately whereas (a juvenile whipping) is carried out in private ... Because there is very little difference in the method ... I am of the opinion that all that needs to be said about this type of punishment was ably and succinctly laid down by Gubbay J A in S vs Ncube and others ..." (my underlining)

(c) But whatever the position is in Zimbabwe, in S.A. there is in reality a vast difference between the two punishments.

Adult strokes: ".... a prison whipping is a rather savage ritual (with likely traumatic aftermaths) as described by Schoeman in his dissertation of 1937:

most harsh, the most brutal and the most despicable of all punishment .... Corporal punishment leaves open wounds and the victim is unable to sit for at least two weeks after the infliction of the punishment.'

The sadistic ritual of prison whipping was recently described by a former Commissioner of Prisons: The naked prisoner is tied,, in a upright position to a wooden triangle with wrist and ankle straps. A blanket is placed over his kidneys and a wet cloth pulled tightly over his [47/-;..] [47] buttocks, whereupon the cuts are imposed (usually by one of the tallest warders). The cuts are counted down in the presence of the district surgeon for what seems to be an eternity."

(Mihalik, 1989 SACJ 328 at 333)

See also the description of adult strokes on pages 713 E to 714 C of S v Ncube 1988 (2) SA 702 (ZSC)

Juvenile Cuts:

"Die jeugdige beskuldigde vir doeleindes van lyfstraf is 'n manspersoon van onder die ouderdora van 21 jaar. Toediening van lyfstraf op 'n jeugdige beskuldigde is in die vorm van 'n magtige tugtiging in afsondering deur die persoon en op die plek deur die verhoorhof bepaal. Die lyfstraf word oor die boude toegedien, terwyl die boude nie ontbloot is nie, maar met gewone kleding bedek. 'n Ouer of voog van die beskuldigde kan teenwoordig wees wanneer die lyfstraf toegedien word en die hof moet die ouer of voog - indien hy by die hof teenwoordig is - van sy reg meedeel om by die toediening teenwoordig te wees. Alvorens die lyfstraf toegedien word, moet die beskuldigde deur 'n distriksgeneesheer ondersoek word. Laasgenoemde moet sertifiseer dat die beskuldigde in 'n geskikte gesondheidstoestand verkeer om die lyfstraf te ondergaan. Waar die beskuldigde nie dusdanig in geskikte gesondheidstoestand verkeer om die lyfstraf te ondergaan. Waar die beskuldigde nie dusdanig in geskikte gesondheids- toestand verkeer nie, 1% die betrokke persoon .die [48/...]

:X^~^, ^*^:r^^^;^T^ [48]

sertifikaat aan die hoof voor wat die vonnis--na goeddunke kan wysig indien oortuig dat die beskuldigde medies ongeskik is." (Du Toit, Straf in SA, pge 315)

(d) See also Sec 295(2) of Act 51/1977.

(e) The cane:

Adult Strokes: 125 cm long, 12 mm thick Juvenile strokes: 1 m long, 9 mm thick (Regulation 100(4) of Prison Regulations)

5.6 STATISTICS

According to Hansson, Selected Statistics of the SA Criminal Justice System (SA Journal of Criminal Justice, Vol 6, 1993, at page 337), the following statistics are relevant:

(a) Whipping (page 350): Number of juveniles whipped during 1992 - 35745 (1991 - 38324) (Sloth-Nielsen's figures differ: 1987/1988 - 40,000 Para 47)

[The authoress unfortunately does not differentiate between adult and juvenile whippings, but the Department of Justice supplied the following figures relating to adults: 1.7.91 - 30.6.92 : 846 1.7.92 - 30.6.93 : 648] [49^..]

,<'-*T'—.J-" •- -~ ..-,./_„.. •;., [49]

^^ ^ ^ ^*- *• «^ *^ —p- « ^ — —I — — *— — -1-

OFFENCE NUMBER NO OF PERSONS UNDER 18

Murder 3787 327 Culp. Homicide 2505 135 Aggravated Assault 43275 3229

Assault 34707 1556

Rape 4841 866

Robbery 9519 1528

Theft 107094 15956 Burglary 37334 9274

Fraud 8474 154 Drugs 46468 2385 Intimidation 137 15

(c) It will thus be seen that in a six month period a considerable number of juveniles (39116) under 18 years of age were involved in serious crimes.

The State does not have statistics for those between 18 - 21 years, but no doubt the total figure of 39116 would far exceed 40 000.

Taken over a full year the figure must be approaching 80 000 juveniles involved in serious crimes.

(d) Assuming that this figure has increased during 1993 and 1994, it is clear that SA is in the grip of an alarming criminal and social problem, and [[50/...]

7 «- -*^* .» «. _..,.•, __^ L .. .,*,-„_ ». i - L . . _ ^ ^^T ^. \*z_ -V'*- .*. - t ..-i>*. .-*„ . JT- M'.r •-„':• -- '-^•'^jVT^*. [50]

it is respectfully submitted that the Courts', "in order to enable them to carry out their side of their contract with society, just cannot afford the luxury of allowing their moral indignation to shut their eyes to the practical implications of striking down Section 294 of Act 51/1977.

(e) This Honourable Court must accept as a realityr it is submitted, that Magistrates, in the absence of cuts as an option, will send more juveniles to gaol or a reformatory, especially in the 17 - 21 year old range. This would, apart from all the well-known drawbacks (gangsterism, sodomy, associating with hardened criminals), place a tremendous strain on facilities. According to the Department of Correctional Services' Report (Annexure B, page 30 of the record the prisons (as at 31.12.93) accommodated 114047 prisoners while there was accommodation for only 87815 prisoners.

(f) An example of what can happen is a case which was heard by Van Deventer J of the CPD. A newspaper report (annexed hereto and marked "B") summarises the facts (six of the accused were found guilty of sodomy and murder, and sentenced to terms of imprisonment, portion of which was suspended.) Their ages (from no 1 to no 7 respectively) were 18, 18, 14, 14, 14, 14 and 17 years.

(g) Although these boys were held in a police cell this does not detract from the validity of the following submissions:

(i) keeping juveniles with their peers is no guarantee of safety; [51/...] [51]

(ii) juveniles can commit the most horrific crimes;

(iii) if this is what happens in a police cell one can but imagine what happens in a gaol or reformatory;

(iv) surely cuts, in appropriate circuinstances, is preferable.

5.7 NO ADEQUATE SENTENCING ALTERNATIVES

(a) Ms Sloth-Nielsen expresses the view (page 52 of the record, para 17.3 of her affidavit) that "abolition of whipping is most unlikely to lead to an increase in the population (of prisons and other institutions)."

(b) It is difficult to understand how she can hold such a view. When one considers the number of juveniles (35 000 - 40 000) that were previously given cuts it seems logical that a considerable number of them (it could be as high as 20 000 - 25 000) would now be sent to gaol.

(c) This Honourable Court is urged to consider the following practical aspects very seriously: When a sentencing option that has affected 35 000 - 40 000 juveniles is taken away overnight, there can be no doubt that the inevitable result is going to be the "flooding" of the custodial institutions or social services, or" both.

[52/.-..] [52]

(d) Unless (or until) there are -

(i) viable alternatives to cuts; and (ii) sufficient personnel to cope with the vast influx of offenders,

the sentencing of juveniles in S.A. will result in chaos.

(e) This would have grave consequences not only for the community but also for the credibility of the Courts and the system of justice.

(f) The State agrees with Ms Sloth-Nielsen (affi- davit , page 32 of the record) that there are indeed some other options open to a judicial officer, and the State agrees with the efforts that are being made to keep juveniles out of the criminal justice system. There can be no doubt that suspended sentences, community service, correctional supervision, victim/offender media- tion etc. are excellent ways to keep a juvenile out of gaol or reformatory.

(g) But all these arguments suffer from one fatal flaw, it is submitted. What all the critics of corporal punishment in effect say is the following: if all the options to keep the juvenile out of gaol are not appropriate in the circumstances, and there must be such cases, then the only other option is gaol or a reformatory. (The good intentions of the critics of corporal

punishment are scant solace for theo juvenile who must now go to gaol).

[53/...

^/;-^^-^ [53]

(h) The critics do not recognise a "grey area", and with the greatest respect to all critical learned Judges and academics, it is submitted that their moral indignation will have the effect of prejudicing those juveniles in the "grey area", for if the alternatives are not suitable in a particular case, and there will be such cases, they are condemning the juvenile to a far worse fate in gaol or a reformatory.

(i) It is reality that many thousands of juveniles will not qualify for the "softer" sentencing options, but on the other hand a term of imprisonment would also not be appropriate, but the offender must be punished. Cuts offers the best practical solution.

(j) As stated earlier, there are indeed several alternative punishments at present, but they suffer from two drawbacks:

(i) they are not always appropriate for the circumstances of a particular case;

(ii) they do not cater for the "grey area" where the crime is too serious for the "softer" options, but not serious enough for prison.

(k) Comments on the present alternatives

(i) caution and discharge (section 297

(ii) postponed sentence (section 297(l)(a), which can be either conditional (section 297(1) (a) (i)) or unconditional [54/...] [54]

(section 297(1)(a)(ii)); (these" 2 options usually reflect the less seriousness of the offence; and almost amount to a discharge)

(iii) suspended sentence (section 297 (1) (b) ), which may be subject to conditions such as those referred to in section 297(l)(a)(i); (a very good option - but if this type of sentence becomes the norm, then "crime does pav'M

(iv) fines (section 287); (not viable in most cases involving juveniles

(v) correctional supervision (sections 276(l)(h) or 276(l)(i) or section 276A);

(vi) an order that a juvenile be placed under the supervision of a probation officer (section 290(l)(a));

(vii) an order that a juvenile be placed under the supervision of a correctional official (section 290(l)(a));

(viii) an order that a juvenile be placed in the custody of any suitable person designated in the order (section. 290(1)(b)); (the options (v) - (vii) all have the element of supervision and monitoring, and unless this can be done properly the sentence is not effective)

[55/...] [55]

(ix) an order that a juvenile be sent to a reform school as defined in section 1 of the Child Care Act, 1983 (section 290

(x) a magistrate may, as mentioned previously, convert the hearing to an enquiry in terms of the Child Care Act, 1983 and then proceed with the options under sections 15(1)(a) to (d) of that Act, which include:

- placing a child in the custody of a suitable foster parent desig- nated by the court under the supervision of a social worker;

ordering that the child be sent to a children's home designated by the Director-General (of the relevant State Department);

ordering that the child be sent to a school of industries designated by the Director- General (of the relevant State Department);

returning the child to a parent or guardian under the super- vision of a social worker.

(xi) a community service order (Sec 297(l)(a)(i)(bb) or (cc), read with 297(1)(A) of Act 51/1977) is another excellent option, but it suffers from the following drawbacks: [56/...] [56]

it requires constant supervision and monitoring to make it effective;

where are the many thousands of "extra" juveniles going to be placed to do their community service? Wont there eventually be resistance from the community?

the sheer numbers of juveniles and the present lack of personnel and infrastructure is going to result in many of these orders (which are usually a condition of suspension of a sentence) not being complied with. The likely result? The suspended sentence will be put into operation.

(1) Another practical problem arising from sentences that need supervision and monitoring is the following. It is a sad but undeniable fact that many of the juveniles will have come from black and coloured townships where single parents, unemployment, gangsterism and truancy from schools are widespread. A juvenile may be sentenced, for instance, to "house arrest" in terms of a correctional supervision order. How does one monitor and supervise such a sentence, especially if the single parent is, for example, a char and the father of the child is a gaol? [57/...] [57]

(m) The unpalatable truth is that these "softer" options are often iust not viable or appropriate, but the child must be punished in some way, but not necessarily in gaol. Cuts is a swift, effective way of punishing the juvenile.

5.8 LACK OF SUFFICIENT PERSONNEL AND INFRASTRUCTURE

(a) Conradie J described the judicial officer's dilemma as follows in S v Maseti 1992 (2) SASV 459 (K) at 464 i:

"Regsbeamptes laat jong mans slaan omdat daar met ons beperkte middele, infrastrukture en vonnisopsies, net geen ander raad met hulle is nie. Ons wil hulle nie aevangeset nie, hulle kan geen geldstraf bybring nie en ons kan hulle nie onaestraf laat gaan nie. Nou straf ons hulle maar so goed of so slegs as wat ons kan, en bevredig daarmee darem, so wil ons glo, die (geregverdigde) vergeldingsdrang van die slagoffer en van die gemeenskap. Maar dat die veroorsaking van pyne en leed 'n onbevredigende vonnisopsie is, weet ons algar lankal. 'n Mens kan maar net hoop dat die nuwe vonnisopsies in die Strafproseswet met genoeg waagmoed, middele, mannekrag, sigbare ywer en verbeeldingrykheid aangewend sal word om hulle, ook in die persepsies van die gemeenskap, in lewensvatbare alternatiewes vir lyfstraf te omskap." (my underlining)

(b) The learned Judge touches on a point raised by Mrs Nothnaoel in her affidavit (page 26 of the record) where she says the following: [58/...] [58]

"Die ander dilemma waarmee maatskaplike werkers tans in die praktyk sit is die oorvol inriatinqs met lana waalyste. Voorts kan 'n reeds oorlaaide toesigstelsel nie 'n vermeerdering in ieugdiqe toesigaevalle hanteer nie; sou hierdie opsie instede van lyfstraf opgele word. Toesigdienste deur 'n proefbeampte net, deur middel van terapeutiese insette, rehabilitasie ten doel en nie slegs 'n moniteringsfunksies nie. Die diens- leweringsaspek lv tans reeds skade as gevolg van beperke mannekrag." (my underling)

(c) This present lack of trained personnel and infrastructure cannot be ignored, and one can but imagine the chaos that would ensue if during 1995 an additional 35 000 - 40 000 (or more) juveniles (ie) the number who were previously whipped, were to qualify for the "softer" options thereby requiring the attention of the various social services.

(d) Ms Sloth-Nielsen deals with the infrastructure problem in paragraphs 9.4 - 9.6 of her affidavit (page 41 of the record), and she refers to S v Sikunyana 1994 (1) SACR 206 (Tk). In that case the Judge was seized with the problem that the magistrate had not asked for a probation officer's report, and he said the following at page 211 b:

"I am advised that there are social welfare or probation officers in the employ of the Department of Social Welfare in each town in Transkei. I have no information as to whether or not such officers would be in a position by virtue of their training and experience to [59/...] [59]

furnish the court with meaningful reports and whether they would be able to supervise the actual performance of the community service. It seems to me, however, that the courts will have to make the best use of such resources as are available and that the assistance of the probation officers in each town should therefore be obtained by any court which is considering the imposition of a community service order."

She goes on to say that "(s)imilarly, there are social welfare offices in each town in S.A. ..."

(e) She is not correct in this assertion.

(f) What happens in reality is that social workers are stationed in a certain town, and from there they serve various magisterial districts (although there are church groups, for instance, who render assistance).

For instance:

Piketberg has 2 social workers, and they have to serve the magisterial districts of Piketberg, Hopefield, Porterville, Moorreesburg and Vredenburg.

Beaufort West has 6 "field workers", and they have to serve the magisterial districts of Victoria West, Loxton, Fraserburg, Murraysburg, Prins Albert and Laingsburg.

[60/...] [60]

(g) If the Magistrate of Laingsburg or Victoria West, for example, sentences a juvenile to corrununity service, the very real problem of control and proper monitoring from Beaufort West is readily apparent.

(h) It is respectfully submitted that as far as the "platteland" is concerned -

(i) the vast distances involved; and {ii) the accute lack of personnel, will in practice, make the "softer options" totally unviable, especially if the numbers of the candidates for those options are suddenly greatly increased, which would be the inevitable result if cuts can no longer be imposed.

(i) She also says (para 9.5) that an "authoritative spokesperson" told her that there was sufficient personnel to serve "at least .... Cape Town".

This "authoritative spokesperson", we would submit, stands in splendid isolation, and he is contradicted not only by the affidavit of Miss Notnaqel but by the common knowledge that the Department is understaffed.

But even if Cape Town can handle the work, what about the rest of the country? A law cannot be made just to cater for Cape Town.

(j) In a further reference to S v Sikunyana (supra) she says that "courts should not allow themselves to be unduly hampered by practical difficulties . . .» (para 9.6) [61/...] [61]

It is respectfully submitted that this is' "an unrealistic and irresponsible approach. The practical implementation of any policy is of paramount importance if it is to obtain any kind of credibility. To close one's eyes to the practicalities can., only result in the whole policy being discredited, with the danger of the community taking the law into their own hands (and this attitude certainly needs no further encouragement).

5.9 CONCLUSIONS DRAWN FROM THE ABOVE

Based on -

(a) the vast difference between the manner in which adult strokes and juvenile cuts are imposed.

(b) the practicalities (lack of infrastructure and personnel, and Sec 294 not being replaced wish another type of sentence);

(c) the fact that notwithstanding objections on moral grounds, juvenile cuts in reality are no worse than cuts imposed at school, which cuts have not had the expressed dire consequences on thousands upon thousands of pupils and juvenile offenders.

(d) the fact that recidivists distort the picture in that they give the impression that cuts has had no deterrent or reformative effect, whereas there must be many thousands of juveniles who have in fact "learned their lesson"; -

[62/...] [62]

the State submits that corporal punishment does not offend the Constitution, and the Constitution does thus not come into consideration at all.

5.9 In the event of this Honourable Court not agreeing with these submissions-, the various Constitutional aspects will be dealt with. As has been said supra, many of the State's sub- missions already made will overlap with the sub- missions about to be made, and will not be repeated.

6. INTERPRETATION OF A CONSTITUTION

(a) Reference has already been made Van Dijkhorst J's judgement in paragraphs 3(d)(iii) and (iv) supra.

(b) This Honourable Court is also referred to other helpful judgements:

Myburg J in Khala v Minister of Safety and Security 1994 (2) SACR 361 (W) at 364 g

- Heath J in Matinkinca (supra)

Friedman J in Nyamakazi v President of Bophut- hatswana 1992 (4) SA 540 (BGD) at 566 D

(c) While it is correct that, because of the provisions of Section 35(1) of the Constitution, public international law and foreign case law could influence our Courts, our own local and social conditions never- theless must be borne in mind.

[63/...] [63]

Cachalia, Fundamental Rights of the New Constitution says on p 109 "that we must again utter a word of caution concerning the use of comparative authority."

Marais J, in the unreported case of Hcrtje (supra), said the following at -pages 4 - 5 of his written judgement:

11 (it is important), when deciding whether or not it would be desirable to adopt a proposed principle of law or procedure, not to lose sight of the nature of the society in which it is to operate."

(d) There seeias to be broad consensus for the following method of interpreting a Constitution:

it is a sui generis document

which must be "benevolently" interpreted

with a "purposive" approach

but the normal rules of interpretation, although they must yield to a more liberal interpretation, are nevertheless not completely discarded

the entrenched rights are not absolute and can be limited.

[64/...] [64]

7. THE SPECIFIC FUNDAMENTAL RIGHTS ALLEGEDLY INFRINGED

7i RESPECT FOR AND PROTECTION OF DIGNITY (SEC

(a) We submit that the "dignity" envisaged by the Section is that meaning which appears in the Compact Edition of the Oxford English Dictionary, namely "the quality of being worthy or honourable; worthiness; nobleness; excellence".

(b) Claasen, Dictionary of legal words and phrases, describes "dianitas" (which seems to be wider than "dignity") as follows:

"DIGNITAS

The meaning of this term for purposes of criminal injuria discussed. "Now dignitas, it seems to me, is not fully translated by the English word xdignity'. Dignitas is not simply the esteem in which a person is held by others - that is his fama - but it includes, it seems to me, his self- respect" (per GARDINER, JP in R v Holiday, 1927 CPD 400). "De Villiers on Injuries says that by dignitas is meant * that valued and serene condition in his social or individual life which is violated when he is, either publicly or privately, subjected by another to offensive and degrading treatment, or when he is exposed to ill-will, ridicule, disesteem or contempt"1 (per GARDINER, AJA, dissentiente in Min of Posts and Telegraphs v Rasool, 1934 AD 190)."

[65/...] [65]

(c) Many aspects of the criminal justice system result in an affront to one's dignity: being arrested in front of friends; being locked up in the police cells; appearing in court the next day, dishevelled and dirty. No one could claim that such arrest etc. is unconstitutional and unlawful merely because it offended Sec 10.

(d) This section, we submit, must be seen in the light of the apartheid era when non-whites were treated with disrespect ("you kaffer/coolie/- hotnot"). Section 10 was put there to rectify this attitude, and to entrench that intangible guality of a person's worth as a human being.

(e) Cachalia (supra) describes the "exact scope of the right (as being) elusive", but he considers the broader use of the word as "clearly (connoting) the inherent worth of a human being and his or her humanity", and this right "interfaces with many ... of a person's rights". (Page 34)

(f) We thus submit that though the aspect of "dignity" might overlap with some of the other rights, Section 10 on its own does not play a role in the present matter as its objective is something completely different to that of Section 11(2).

[66/...] [66]

7.2 EQUALITY PROVISIONS (SEC 8)

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.

(4) 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."

7.3 SEXUAL DISCRIMINATION

(a) The Accused submit (paragraphs 173 - 175) that cuts unfairly discriminate against men because females are exempt from this punishment, apparently on the grounds that females are emotionally and physically weaker.

(b) COMMENTS THEREON

(i) Cachalia (supra) suggests the following approach (at page 25 et seq) [67/...] [67]

"In Andrews v Law Society of BC 5 6 DLR (4th) 1 Mclntyre J glossed the equality provision in Section 15 of the Charter holding:

* It is - not every distinction or differentiation in treatment at law which will transgress the equality guarantees of Section 15 of the Charter. It is, of course, obvious that legislature may - and to govern effectively - must treat different individuals and groups in different ways. Indeed, such distinctions are one of the main preoccupations of legislatures. The classifying of individuals and groups, the making of different provisions respecting such groups, the application of different rules, regulations, requirements and qualifications to different persons is necessary for the governance of modern society. As noted above, for the accommodation of differences, which is the essence of true equality, it will frequently be necessary to make distinction.'"

And on page 27:

"What are the criteria? We do not have to answer the broader philosophical questions because the text in Section 8(2) provides the basis for a coherent approach to this vexed constitutional issue. The listed grounds of *race, [68/...] [68] gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture or language' all point to human characteristics that are either immutable (race, age, etc), or very difficult to change (sex, language, culture), or inherently part of the human personality (belief, religion, conscience) and subject very often to stereo-typing and prejudice. Accordingly, Section 8 should not be interpreted to contemplate the review of any and very classification, but only those that are enumerated or analogous. This was the approach adopted by Andrews and the gloss Hogg puts on it should not be lost on us as we develop our own jurisprudence:

*[t]he purpose of Section 15 [the equality guarantees in the Canadian Charter] was not to eliminate all unfairness from out laws, let alone all classifications that could not be rationally defended, but rather to eliminate discrimination based on immutable personal characteristics. These considerations led the Court in Andrews to interpret Section 15 as a prohibition of discrimination, and to define discrimination as disadvantage caused by classifications listed in Section 15 and analogous classifications. This has the merit of avoiding any inquiry into the abstract [69/...] [69]

concept of equality, and the further merit of excluding from equality review those statutes that do not employ the listed classifications, or analogous classification."1 (At 52-17.)

(iii) However, as far as Southern Africa is concerned this "inequality11 is not universally recognised. In the Transkei male and female juveniles may be whipped (S v Vakalisa supra), and it is common knowledge that the "people's Courts" order females to be flogged. (See also Annexure "A")

It also seems as if tribal law in S.W.A. (as it then was) approved if the following procedure:

"(Lyfstraf word toegedien) met 'n palmtak ... in die openbaar en op die naakte deel van die liggaam. Volgens stamtradisie kan vrouens ook lyfstraf ontvang ..." There is no limit to the number of strokes. Wood en andere v Ndonawa Stamowerheid en 'n ander 1974 <3) SA 557 (SWA) at 560 G - H

[70/...] [70]

Rumpff CJ commented on this aspect "of the case as follows:

"It is not necessary to consider the disputes concerning tribal law and custom that have sprung up in the present case, I think it should be pointed out, however, that although corporal punishment may be permissible in certain cases according to tribal law and custom, a tribal court ought not to impose a method or form of punishment that is contrary to accepted present day norms of humane treatment of offenders. Having regard to the instrument used by the respondents any number of strokes more than six, may well be regarded as excessive. Corporal punishment ought also not to be inflicted in public nor should women ever be subject to this type of punishment." (my underlining)

(Wood and others v Ondangwa Tribal Authority 1975 (2) SA 294 (A) at 305 D)

(iv) Discrimination against females abounds in our society. For example:

Religions: Most religions have some or other code or rule which discrimi- nates against women. Some do not permit females to be ordained as priests, others [71/..,] [71]

separate males and females in the places and/or times that they may worship, others again require the females to cover themselves from head to toe. This discrimi- nation is tacitly approved of and entren- ched, in Sec 14(1) of the Constitution.

Sport: It is doubtful whether a woman could qualify to be a lock forward or a prop in a Springbok rugby team, or that a female could box against a Rocky Marciano.

Social Civilised society still regards females in a protective light purely because of their sex, and in so doing often discriminate against men. Social niceties [opening doors, pulling out their chairs, etc], "women and children first" and "womens' floors" in some hotels are some examples.

[72/...] [72]

Victims: Because of their biolo- gical characteristics only females can be the "victims" of certain crimes. Without consi- dering the aspects of attempt or accomplices, only females can be victims of rape and only men can commit rape. Only females can be victims of an illegal abortion because only females can become pregnant [ although both males and females can of course be guilty of performing illegal abortions]. A male who fondles a female's breasts can be guilty of indecent assault, but if a female rubs a male's hairy chest this would hardly be termed an indecent assault.

Punishment Before the death penal- ty became wholly discretionary, females who had been found guilty of murdering their new-born child- ren were treated diff- erently when sentence [73/...1 [73]

had to be passed. See Sections 277(2) and 290(3)(a) of Act 51/1977 before the amendment. Society and the Courts accepted this discrimination because of factors that were peculiar to women after childbirth. (See also Sec 278(1) of Act 51/1977).

(v) The real question is - was there "unfair" discrimination? It is only protection against "unfair" discrimination that is enshrined in Sec 8(2).

"...there is something seriously flawed in refusing to pierce the veil of formal equality and recognise that differentiating by reference to a biological characteristic of only one sex is discrimination by sex. Whether it is 'unfair7 or a permissible limitation under Sec 33 are and should be different questions." [my underlining]

CACHALIA, Fundamental Rights in the New Constitution at page 30

(c) It is thus submitted that it is just a fact of life that males and females are treated diffe- rently on several levels, and cuts is one of [74/...] [74]

those levels. This discrimination, in the society wherein we live, is not "unfair", and thus does not run foul of the Constitution.

Alternativelv, if it is "unfair", then it is a permissible limitation under Section 33 (Dealt with infra)

7.2 AGE

(a) In para 175 the accused submit that there is no rational basis for singling out juvenile males under 21 years for whipping.

(b) COMMENTS THEREON

(i) We submit that the rational basis starts with the proposition that society recognises that children and adults are treated differently on many levels.

(ii) As far as punishment is concerned the law provides specifically for persons under 18 years (compare Sec 276 of Act 51/1977, which sets out the "nature of punishments", and Sec 290(1) and (2) and Sec 277(3)(a)), and for ages between 17 - 21 years (see Sections 290(3) and 294(1)(b)).

(iii) Witnesses and accused persons under 18 years are also treated differently - see Sections 153(3A), (4), (5) and (6), and Section 154(3) of Act 51/1977. [75/...] [75]

(iv) There is also a move afoot to try" a"hd keep juveniles in certain instances out of the criminal justice system altogether.

(v) If this principle (of discrimination between those older than 21 and those younger than 21) is accepted as broadly desirable and necessary in society, then the imposition of cuts on males under 21 is not "unfair", for it is but a small(in relative terms) manifestation of the broader, rational and acceptable discrimination that exists in every society. Nobody is exactly "equal11 in every aspect.

(vi) We submit that the prohibition of discrimination on the basis of "age" was aimed at the following sort of situation: if a law forbade anyone from attending a university until he was 18 years of age, a genius (such as our own Jan Hofmeyer, who went to university at the age of 12 or 14) would clearly be discriminated against in terms of Sec 8(2).

(vii) Alternatively, Sec 33 allows a limitation of this right (dealt with infra).

[76/...] [76]

7.3 RACIAL DISCRIMINATION

(a) The accused (paragraphs 34 - 40; 167 - 172) analyse the history of whipping, and submit that there is a strong suggestion that "racial bias11 plays a role in "the application of corporal punishment.

(b) COMMENTS THEREON

(i) We must admit that we were shocked to read the racial statements made by Ministers of Justice et al when corporal punishment was discussed in the 1950's.

(ii) Whatever the politicians might have said on this matter, we submit that there is no evidence that Magistrates and Judges imposed cuts because of their racial bias, or that Judges confirmed sentences on appeal or review (by their thousands) because of their racial bias.

(iii) Referring once again to Hansson's Selected statistics, supra. the following is seen (Jan - June 1992^ :

OFFENCES NUMBER BLACK ACCUSED BLACK VICTIMS

Murder 3787 3672 3537

Culp. Horn. 2505 1125 1120 Aggravated Assault 43275 42458 42622

[77/...] [77]

The point is that a larger number' of blacks are involved in the cominission of crimes, and it is thus inevitable that more blacks than whites will go to gaol, be sentenced to death or to a whipping.

(iv) The accused cite a survey (para 170) where it was found that, propor-

tionalityr more blacks and coloureds were whipped than whites or Asians. These figures are meaningless unless one also knows the following (which could explain why the one accused got cuts and the other did not):

the gravity or otherwise of the offences for which they had been found guilty (perhaps the whites had stolen a chocolate from the corner cafe and the black or coloured had stolen a car);

the ages and personal circum- stances of the accused;

what the probation officers had recommended;

whether the accused or his parents had asked for cuts (dealt with infra)

whether they were first offenders or not. [78/...] [78]

(c) It is thus submitted that there is no basis for this allegation; and there is no indication that the Constitution hasr- been violated on this particular ground.

7.4 THE RIGHTS OF CHILDREN

(a) The Accused have submitted (para 192 - 196) that children's rights in terms of Sec 30 have been violated in that children have a right to "security" and not to be "abused11 (Sections 30(1)(c) and (d) respectively)

(b) COMMENTS THEREON

(i) Cachalia (supra) on page 100 say the following:

"Over the past three decades there has been an increasing effort to formulate ... safeguards for children on account of their vulnerability to violations of human rights more specifically arising out of inadequate social conditions, armed conflict, exploitation, hunger and disability."

(ii) The words "security" and "abuse" cannot be seen in isolation but must be seen in their proper context, not only in relation to each sub-section but also the section as a whole. Thus, "security" and "abuse" must be read with the whole sub-sections ("(c) to [79/...] [79]

security, basic nutrition and basic health and social services;" and " (d) not to be subject to neglect and abuse". )

(iii) Furthermore, they are various safe- guards to prevent "abuse". Sec 73(3) read with Sec 74 Act 51/1977 makes it obligatory for parents or guardians to be present at the trial; Sec 294(3) allows them to be present at a whipping; Sec 25(1)(d) of the Bill of Rights gives children the entrenched right to communicate with their next- of-kin.

(iv) We submit that whipping is not a violation of the rights envisaged by Sec 30. Those rights relate to something completely different and they have different objectives.

(v) The requirement in Sec 30(3) that "(the best interests of the child) shall be paramount", relate (we submit) to an injunction to consider those interests on an ad hoc basis. That is, on the facts and circumstances of a particular case the child's best interests shall be paramount.

This has always been applied by our Courts - see Fletcher v Fletcher 1948 (1) SA 130 (A).

[80/...] [80]

So, for example, the child's best interests would determine which parent would have custody; whether grand- parents could claim custody; whether a child should be adopted; should a child be declared a "child in need of care" etc.

(vi) This requirement cannot be applied to the criminal law in general and punishment in particular, because there are many other factors that have to be taken into account when a person is sentenced. These factors are trite law ("the triad consisting of the crime, the offender and the interests of society" (S v Zinn 1969 (2) SA 537 (A) at 540) , as are the objectives of punishment (deterrent, preventive, reformative and retributive - see S v Rabie 1975 (4) SA 855 (A) at 862 A).

So it might be that where a gang of juveniles have murdered and sodomised a cell-mate (supra), it might not be in their best interests to go to gaol (or be given cuts), but the crime and the interests of society might demand it.

(vii) If the Accused's interpretation of Sec 30 is correct, then virtually no juvenile can be punished by the Courts because the peremptory provision of Sec 30(3) would interfere with the Magistrate's or Judge's discretion in relation to sentence. [81/...] [81]

7.5 WHIPPING IS CRUEL. INHUMAN OR DEGRADING TREATMENTS. AND A VIOLATION OF SEC 11(2)

(a) 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.11

(b) From paragraph 70 - 136 of their heads of argument the Accused set out a wealth of authority to support their case.

(c) In answer to this the State stresses the following (these submissions have already been dealt with supra and will not be repeated in detail):

(i) many Judges have supported whipping for juveniles, albeit as the lesser of two evi1s;

(ii) the danger of the whole juvenile sentencing process being discredited should whipping be abolished cannot be overemphasised;

(iii) the practical problems that would follow if whipping was to be abolished are truly awesome;

[82/...] [82]

(iv) since a value judgement must 'be exercised the minority opinions of Judges who have not found whipping to be unconstitutional should be earnestly considered;

(v) the justified horror of adult strokes (often expressed in emotional language) should not be allowed to becloud a dispassionate appraisal of juvenile cuts;

(vi) whatever is said internationally, the Court's responsibility is still towards South African society;

(vii) there is no doubt that many thousands more juveniles would be sent to gaol or a reformatory;

(viii) it could cause chaos if such a prominent sentencing option as whipping were to be removed "overnight11, leaving a vacuum.

Korsah JA in the Juvenile case supra said the following:

"We cannot shirk this duty merely because there is no alternative suitable punishment on the statute books for errant juveniles. If there is the need for such alternative punishment the task lies ... with Parliament."

(page 176 D of the report) [83/...] [83]

It is submitted that this attitude is most irresponsible, and this Honourable Court is urged not to follow it.

(ix) abolishing whipping would automatically condemn those who do not qualify, for whatever reasons, for the "softer" options, to gaol or a reformatory. It is respectfully submitted that this Honourable Court will not close its eyes, or harden its heart, to the awful consequences of this to many thousands of juveniles.

(d) We respectfully submit that juvenile cuts does not offend Sec 11(2); alternatively, if it does, Sec 33 provides a limitation of the right (dealt with infra).

8. WHIPPING REQUESTED BY PARENTS

(a) In para 231 the Accused submit that parents most probably request this option because of a Hobson's choice - cuts or gaol.

(b) That this might be so in some cases cannot be denied. But one of the State' s counsel (Mr Slabbert) has practiced at the Cape Bar and has also sat on the District Court and Regional Court Bench, and his experience in practice can perhaps explain this phenomenon. In one case his (white) client had been found guilty of robbing a building society. His client instructed him to request adult strokes rather than imprisonment. This is perhaps an example of the [84/...] [84]

Hobson's choice situation (The Magistrate granted "the request).

In other cases where a parent has requested him (as a Magistrate) to impose cuts, experience shows that this is not so much a question of Hobson's choice, but a despairing mother (often a single parents who cannot control or discipline her son, and her earnest request iS/ "Edelagbare, gee horn asseblief 'n goeie pak".

(c) According to Ms Sloth-Nielsen's article "Corporal Punishment: Acceptable State Violence?" black witnesses "testified before the Viljoen Commission in 197 6 that corporal punishment was respected by the black community, that it was regarded as an effective deterrent, and that it should be used more frequently11 (pages 199/200). The position regarding the Zulu nation is not so clear (page 205).

(d) It is submitted that all this could pose a problem for this Honourable Court. Newspaper reports have reported some Constitutional Judges as having said that they are there to interpret the Constitution, and their interpretations might run counter to public opinion.

We respectfully submit that this Honourable Court must not lose sights the country and the society wherein this Constitution must be interpreted, or, as Marais J put it in the unreported Nortie case (supra), "when deciding whether or not it would be desirable to adopt a proposed principle of law or procedure, (it is important) not to lose sight of the nature of the society in which it is to operate". (Page 5)

[85/...] [85]

(e) There are strong indications (supra) that the views of Judges and academics who disapprove of corporal punishment are not shared by black tribal law, and we are confident that if a poll were to be taken amongst all population groups, the overwhelming response would be in favour of the retention of juvenile cuts.

(f) Seen in this light, parents asking that the Courts impose whipping is not so strange, for as far some blacks are concerned it would be in accordance with their custom, and for blacks, whites and coloureds in general it would be in accordance with their wishes as part of society who want to see criminals punished.

(g) It is thus respectfully submitted that this Honourable Court must pay heed to public sentiment for otherwise its judgements could become discredited. It is common knowledge (as stated earlier) that already people are taking the law into their own hands, and it would be dangerous to encourage this.

(h) The situation in S.A. is not the same as in Canada, Germany, the Netherlands et al, and the highest Court in the land must recognise this, we respectfully submit.

(i) It might be argued, what about Zimbabwe and Namibia, whose peoples are very similar to ours? The Courts there have ruled against corporal punishment.

[86/...] [86]

(j) Our submissions to this are the following:

(i) The Government of Zimbabwe changed its constitution after the Court's ruling, thereby re-instating corporal punishment (this proves that the Court's ruling was not in accordance with public sentiment);

(ii) As far as _Namibia is concerned, we respectfully submit that the Court went too far^ and the decision relating to juvenile cuts is wrong and should not be followed by this Honourable Court.

9. LIMITATION OF RIGHTS - SEC 33 OF THE ACT

9.1 GENERAL

(a) Sec 33 provides as follows (in summary form):

(i) the entrenched rights may be limited by a law of general application;

(ii) but only to the extent that it is reasonable; and

(iii) justifiable in an open and democratic society; and

(iv) which shall not negate the essential content of the light, and, in the instant case also be necessary in respect of Sections 10, 11 and 30(d).

[87/...] [87]

(b) Cachalia (supra) supplies an instructive discussion on this section at p 105 - 112.

(c) It is accepted that in all probability this Honourable Court will apply R vs Oakes (1986) 26 DLR (4th) 200 and R v Whyte (1988) 51 DLR (4th) 481. The requisites for limitation were summarised as follows in the Whyte case:

"There are two major criteria. First, the objective which the measure responsible for the limit on a right or freedom is designed to serve must be sufficiently important to permit over- riding the constitutionally protected right or freedom . . . Second, to show that the measures are reasonable and demonstrably justified requires an analysis of the proportionality of the measures . . . There are three components to the propor- tionality test: the measures must be carefully designed to achieve the objective of the legislation/ with a rational connection to the objective. The second component is that the measure should impair the right or freedom as little as possible. Finally, there must be proportionality between the effects of the impugned measures on the protected right and the attainment of the objective.11

(d) We respectfully draw the Honourable Court's attention to the following additional guides:

(i) the minority judgement of Mclntvre J in Law Society of British Columbia v Andrews (1989) 56 DLR 1 (4th) at pages 25 .- 26:

[88/...] [88]

"In Oakes, it was held that to override a Charter-guaranteed right the objective must relate to concerns which are "pressing and substantial" in a free and democratic society. However, given the broad ambit of legislation which must be enacted to cover various aspects of the civil law dealing largely with administrative and regulatory matters and the necessity for the legislature to make many distinctions between individuals and groups for such purposes; the standard of "pressing and substantial" may be too stringent for application in all cases. To hold otherwise would frequently deny the community-at-large the benefits associated with sound social and economic legislation. In my opinion, in approaching a case such as the one before us, the first question the court should ask must relate to the nature and the purpose of the enactment, with a view to deciding whether the limitation represents a legitimate exercise of the legislative power for the attainment of a desirable social objective which would warrant overriding constitutionally protected rights. The second step in a S 1 inquiry involves a proportionality test whereby the court must attempt to balance a number of factors. The court must examine the nature of the right, the extent of its infringement, and the degree to which the limitation furthers [89/...] [89]

the attainment of the desirable goal embodied in the legislation. Also involved in the inquiry will be the importance of the right to the individual or group concerned, and the broader social impact of both the impugned law and its alternatives. As the Chief Justice has stated in R v Edwards Books & Art Ltd, supra; at p 41 D.L.R., pp 768 - 9 S.C.R.:

"Both in articulating the standard of proof and in describing the criteria comprising the proportionality requirement the court has been careful to avoid rigid and inflexible standards."

I agree with this statement. There is no single test under S 1; rather, the court must carefully engage in the balancing of many factors in determining whether an infringement is reasonable and demonstrablv justified." (my underlining)

(e) The Accused submit (para 19 9), and some Courts and writers are of the opinion, that "the prohibition against inhuman or degrading punishment is couched in absolute terms and permits no derogation therefrom. It excludes the concept of justifiability11. Per Gubbav J A (as he then was) in:

S vs Juvenile 1990 (4) SA 151 (ZSC) at 169 E

[90/...] [90]

See also:

Ex parte Attorney-General, Namibia (supra) at 86 D (per Mahomed AJA, as he then was) Catholic Commission for Justice and Peace, Zimbabwe vs Attorney-General, Zimbabwe 1993 (4) SA 239 (ZSC) at 247 E (also per Gubbay, now C.J) Cachalia, Fundamental Rights in the New Constitution, pages 37, 115 Sieghart, The International Law of Human Rights, page 161

COMMENTS THEREON

(i) As far as Namibia is concerned, Section 24(3) of their Constitution expressly forbids any derogation (page 86 D of Ex Parte Attorney-General, Namibia, (supra) and page 161 of Cachalia^

(ii) As far as Zimbabwe is concerned we point out the following:

in the Juvenile case (supra) Gubbay JA was dealing with juvenile cuts when he held that the section permitted no derogation

subsequent to his decision their constitution was amended (details of this amendment are still being sought, and will be supplied later)

[91/...] [91]

in the Catholic Commission for Justice case (supra) he was seized with capital punishment, and he referred to his own judgement in the Juvenile case

it is thus clear that as far as juvenile cuts are concerned his judgement on this point in the Juvenile case is no longer valid, and the Catholic Commission case deals with another matter {our equivalent of Section 9)

(iii) As far as S.A. is concerned, Cachalia supra cannot be correct, for the following reasons:

Sec 33(1) provides that the "the rights entrenched ... may be limited ..."

the "absolute rights" (in the instant matter these are Sections 11(2) and 30(l)(d) and (e)) may be limited provided that, in addition to any other require- ment, such limitation is "necessary" - Sec 33(1)(b)(aa)

(iv) The Accused, in para 199 et seq, refer to certain international conventions to support their submission that our Sec 11(2) cannot be limited. Sieghart (supra) also refers to them. Some of these conventions are analysed hereunder: [92/. . . ] 92]

Universal Declaration of Human Rights

Art 5 - cruel etc. punishment Art 30 - the State cannot per- form any act aimed at the destruction of any of the rights and freedoms

African Charter of Human and Peoples' Rights

Art 5 - cruel etc. punishment there is no provision for any limitation

International Covenant on Civil and Political Rights

Art 4 - derogation can take place in times of public emergency, but there can be no derog- ation on this ground in respect of (inter alia^ art 7.

Art 7 - cruel etc. punishment

Art 5 - the state cannot perform any act aimed at the destruction of any of the rights and freedoms, and any limitation shall only [93/...] [93]

be to the extent provided for

Arts 12.3, 12.4, 14.1, 19.3, 21 and 22.2 have their own "inbuilt" limitations

European Convention on Human Rights

Art 3 - inhuman etc. punishment Art 15 - derogation can take place during war or public emergency, except there shall be no derogation on this ground in respect of (inter alia) Art 3

Articles 2, 5, 8(2), 10(2), 11(2) and 15(1) have their own "inbuilt" limitations.

(v) It is clear that these conventions either have no limitation clause at all, or they specifically forbid it, or they limit the derogations to each article's "inbuilt" limitation. They are thus totally dissimilar from our Constitution, and they do not afford support for the Accuseds' submissions.

(vi) Our Constitution has "inbuilt" limitations in respect of some Sections (8(2), 23, 25(2)(d), 26(2) and 28(2) and (3) for example), and also a "general" power of limitation - see Sections 4(1) and 33(1). [94/...] [94]

(viii) This can only mean that any of our entrenched rights may be limited, even if it must be done by "necessary implication" - Sec 4(1).

9.2 JUSTIFICATION FOR LIMITATION

We will deal primarily with the limitation of a Sec 11(2) right.

9-2.1 LAW OF GENERAL APPLICATION

Act 51/197 7, and Sec 294 thereof, qualify under this requirement.

9.2.2 REASONABLE AND JUSTIFIABLE IN AN OPEN AND DEMOCRATIC SOCIETY BASED ON FREEDOM AND EQUALITY

The following must be considered, following the Oakes and Whyte approaches:

(a) SUFFICIENTLY IMPORTANT OBJECTIVE TO OVERRIDE THE RIGHTS

We respectfully submit that the following are "sufficiently important objectives":

(i) society in general demands that the legal system provides for the punishment of criminals, and that the Courts impose proper punishments; [95/...] [95]

(ii) the particular criminal must be punished for otherwise he (and others) will not be deterred, and crime will soar;

(iii) cuts caters for that "grey area" where neither the "softer options" nor imprisonment are appropriate for the circumstances of that particular case;

(iv) the stark choice between either a "softer option" or imprisonment, with nothing (as yet) to take the place of cuts, in itself results in "cruel and inhumane" treatment if the imprison- ment option is exercised;

(v) despite being denigrated by many Judges and academics, the objective of keeping a juvenile out of gaol is a laudable one, and it has widespread support amongst even those Judges who condemn adult strokes;

(vi) the already struggling staff and inadequate infra- structure run the risk of being "swamped", leading to the whole system being [96/...] [96]

discredited and an esca- lation of the public taking the law into their own hands;

(vii) - the "softer options" look fine on paper, and they mollify the sensibilities of the critics, but what evidence is there of their large-scale effectiveness?

(What McNally JA said in the Juveni1e case bears repeating (page 17 3 H):'

"We are not likely to improve our manpower and transport problems in the Social Welfare Department for many years. Nor am I convinced that even in the most sophisticated countries the probation system works satisfactorily".)

(b) CUTS ARE REASONABLE MEASURES AND ARE DEMONSTRABLY JUSTIFIED

We respectfully submit the following:

(i) Some of . the submissions already made in relation to the "objectives" (supra) could equally apply to this aspect; [97/...] [97]

ii) We agree that some accused might suffer extreme physical or psychological consequences, but proper .. safeguards could protect those accused. (As has been submitted earlier, imprisonment is far more likely to have detrimental effects on virtually everyone who is subjected to it, but there is no talk of abolishing imprisonment) The worst effect on the average juvenile will be a painful posterior.

(iii) Cuts must be seen in per- spective. Critics view it in isolation and then paint the bleakest picture about it. But when viewed from the eyes of the accused who is faced with 3 years in the reformatory or a gaol (with all the attendant conse- quences that need not be repeated) , then 6 cuts (and he goes home the same day) seems by far the more reasonable punishment. Even when viewed objectively in this light, cuts constitutes reasonable punishment. [98/...] 98]

(iv) This punishment does not conflict with our ideals of and "open and democratic society based on freedom and equality11 .

All citizens have rights and duties (Sec 5(3) of the Constitution) and not every- one is exactly equal. Every democratic society neverthe- less recognises and accepts that freedom can be termi- nated or curtailed. Debt can cause you to lose your job or your home, and committing a crime can cause you to lose your freedom.

These results do not conflict with the above ideals - so long as the consequences (losing your home, going to prison) have been as a result of a process (a "fair trial") which is in accord with those ideals.

Punishment for a crime is accepted in every society and cuts are but a single manifestation of that generally accepted price a citizen must sometimes pay for his crimes. Cuts per se [99/...] [99] are not in conflict with theideal set out supra. • -If cuts are unconstitutional then such unconstitution- ally must be sought on other grounds, we submit.

(v) The objective of the punishment set out in Section 29 4, firstly, must be seen as a part of the whole concept of the various types of punishment that Act 51/1977 makes provision for (which includes punishment in general, punishment for juveniles and also specific punishments for women in certain circumstances), and secondly, the objective is to make provision for the 11 grey areas" already men- tioned, and thirdly, the objective is to allow punishment in lieu of imprisonment (as the lesser of two evils).

(vi) If it is accepted that the circumstances of a case might warrant a stiffer sentence than a "soft option" but does not warrant imprisonment, then cuts are the rational connection to this objective. Further- more, if there is nothing to [100/...] [100]

take the place of cuts, and lack of personnel and infrastructure make the "soft option" less efficient, then cuts once again provides a rational connection with the overall objectives of punishment, and with the objective to keep the juvenile out of gaol in particular.

(vii) The second leg of the pro- portionality test is that the right should be impaired as little as possible. It is trite that this involves a balancing of the various interests, and the result is often a compromise. The Sec 11(2) right is not to be subjected to "cruel, degra- ding etc" punishment or treatment. As has been submitted earlier, imprison- ment (especially for long terms) would clash with this right, and in comparison with cuts imprisonment is by far the more drastic impair- ment of the right. But, on the assumption that a sound case can be made out for imprisonment, then in principle cuts (which is of short duration) has an even [101/...] [101]

stronger leg to stand on (as far as this aspect is concerned.)

(viii) The third leg of the pro- portionality test is that there must be proportion- ality between the effects of the impugned measure on the protected right and the attainment of the objective. This "leg" overlaps the second "leg" to some extent. Imprisonment, as an objective of punishment, effects the right for a considerable period of time (even for life), whereas cuts, with the various objectives set out supra, attains these objectives with the minimum effect on the right.

9.2.3 THE ESSENTIAL CONTENT OF THE RIGHT SHALL NOT BE NEGATED

(a) The various interpretations of this section are not very helpful.

Cachalia (page 115) says that this section gives "explicit recognition to the fact that what is at stake ... is the legitimate circumscription of rights not their visceration." (my underling) [102/. . . ] i [102]

Myburqh J in the Khala case (supa) said the following at page 370 f:

"The precedent for Section 33(1)(b) is apparently Section 19.2 of the German Basic Law, which states that:

xIn no case may the essential content of a right be encroached upon.'

In his article, vRiding the Push-me Pull-you: Constructing a Test that Reconciles the Conflicting Interests which Animate the Limitation Clause' (1994) 10 SAJHR 60 at 71 - 72, Stuart Woolman writes that Section 33(1)(b)

"... establishes an absolute ceiling for government restrictions of fundamental rights unlikely to affect most government restrictions.

In all constitutional jurisprudence, the content of a right must be determined before a court can turn its attention to the justifiability of limitations on or negations of the right. There is no metaphysical magic in this determination. The "content" of a right is really no more than the values and the practices the right is designed to support.

For reasons unique to the German system, German jurisprudence splits this determination into two parts. [103/...]

J [103] Firstly, the court must discover the objective meaning or content of the right. The objective content refers to those values and practices which support a free, constitutional and democratic order ... Second, the court must discover the subjective content of the right. The subjective content refers to those values and practices which support the exercise of the right by particular individuals and groups. ...

In order to prove that a government restriction negates the essence of the objective content of a right, one must show that the right can no longer serve its intended objective function. ... In order to prove that a government restriction negates the essence of the subjective content of a right, one must show that the individual can under no conditions exercise the right."

(b) It seems as if Mvburgh J places the onus of proving this section upon the party who alleges that his right has been infringed.

(c) Heath J in S vs Maiavu 1994 (2) SACR 265 (Ck) , when dealing with a limi- tation of Sec 23, said (at page 297 i) that the privilege in respect of a document "will not necessarily negate the essential content of the (Sec 23) rights ... The purpose of a limitation is to enhance fundamental rights rather than to destroy them.11 [104/-..]

1:1 [104]

(It is difficult to understand what the learned Judge meant, we respectfully submit).

(d) Jones J, writing for the Full Bench (Zietsman JP et Melunsky J concurring) in Phato v Attorney-General, Eastern Cape and others (unreported, case no 1323/94) at page 6 7 of his judgement merely agreed with Heath J and Myburgh J, without comment.

(e) In the unreported case of Nor tie (supra), Harais J was seized with a similar matter as Phato, and writing for the Full Bench (Fagan D. J. P. et Scott J concurring) he wrote as follows (a fairly full extract is quoted because the case is as yet unreported) :

He writes in general terms from page 26 of his judgement:

"To the extent that the onus of proof may be relevant, an approach which has been adopted in some jurisdictions, including our own, following the Canadian decision of R v Oakes (1986) 2 DLR (4th) 200, is that the party seeking to establish the existence of the right, bears the onus of proof in so far as the first leg of the inquiry is concerned, while the party who seeks a limitation of that right, bears the onus of establishing the justification for that limitation in terms of Sec 33(1). [105/...] [105]

The approaches adopted by other courts and constitutional lawyers to the interpretation, limitation and application of constitutionally entrenched rights are undoubtedly a valuable aid to understanding what is entailed in those processes. Logically structured and systematic approaches have an inherent appeal for lawyers. However, they remain what they are, not holy writ, but simply methodological approaches which are not necessarily the only legitimate approaches to the task. The approach favoured in the Oakes case, supra, is attuned to the criteria set forth in the Canadian Charter of Rights. While there is a large measure of similarity between the criteria laid down in Sec 1 of the Canadian Charter and the criteria to be found in Sec 33(1) of the Constitution, they are not identical and due allowance has to be made for the differences.

What needs to be emphasised, I think, is that the criteria which have to be taken into account require value judgments to be made, and priorities to be determined ad hoc, whenever a problem is presented for a court's consideration. Once having determined what the reach of the conferred and entrenched right was intended to be (essentially a question of that right is "reasonable11, whether it is [106/...] [107]

to_the_ i t- alive. the... }uan,j.uU^ in an societal interests and concerns intellectually and ethically discip- lined and principled way, which is seen to be mindful of the viewpoints of those concerned, and not capricious or self-indulgent.11 (my underlining)

The learned Judge then deals with * '-.' •' •.• • * '• Section 33(1) (b) at page 52 of his judgement.

" It is a remarkable provision. In their understandable zeal to ensure that the fundamental rights conferred in Chapter 3 remain undiluted as far as possible, the framers of the provision [108/...] [108] appear to have brought about a rigidity and inflexibility which society may come to regret. While acknowledging the need for some dilution where the interests of society require it, the trainers of the provision have largely disabled the courts from responding to the need, by insisting that the essential content of the right in question shall not be negated. The assimilation into our Constitution of disparate provisions to be found in other constitutions and bills of rights has resulted, in my view, in a limita- tion provision which may be found to frustrate the achievement .of entirely respectable and legitimate societal goals. I have found little comfort in the writings of those who have sought to minimise its all too apparent deficiencies. It is very difficult, in my view, to defend convincingly a provision which plainly and unabig- uously provides that a right which it is reasonable, justifiable in an open and democratic society based on freedom and equality, and even necessary, to limit by law of general application, shall not be limited, but remain inviolate, if limiting it would negate the essential content of the right. It is not easy to see what justification there could be for constitutionally entrenching and rendering inviolate a right even when the negation of the essential content of that right can be [109/...} [109]

shown to be reasonable, justifiable.in an open and democratic society based on freedom and equality, and even necessary." (my underlining)

(f) The consequences of this section could be catastrophic if it were to be given its strict meaning, as Marais J has warned.

For instance, imprisonment would negate the following rights: Sections 11(2); 13 (personal privacy is out of the question in a cell shared by 20 other inmates); 17 (you have no choice with whom you wish to associate); 18 (your freedom of movement is curtailed); 19 (your right to "choose freely" where you want to live is denied), as is your right to "freely engage" in economic activity (Sec 26(1)).

(g) If A kills B in self-defence his action will not be a justified limitation of Section 9 because there can be no doubt that A has negated B's "right to life" totally and permanently. The same would apply to a soldier (or policeman) acting within the scope of their duties.

(h) Section 13 also guarantees citizens not to be subject to "searches11 and "seizures".

[110/...] [110]

The section does not add the words "except in accordance with law11, or similar words. See for instance Sec 8(2) of the European Convention on Human Rights and Section 13(2) of the Namibia Constitution.

Thus, if a policeman lawfully searches the mandrax dealer's house and seizes 10 000 tablets, he will have to justify his action in terms of Sec 33 as he has prima facie infringed this right. If Sec 33(1)(b) is strictly applied he would never succeed in proving that his action was lawful.

(i) If Marais J's interpretation is correct, then it is respectfully submitted that this Honourable Court should earnestly consider whether it has the power, in terms of Sec 2(c) of the Constitution, to strike the section down, for it seems to render sections 33(1)(a) and (aa) and (bb) of no force and effect.

(j) Alternatively, the following interpre- tation is respectfully suggested:

Sec 33(1) (b) must be interpreted as ancillary to the other requisites for limitation, and not as a separate, additional requisite. Thus, if all the other requisites for limitation have been proved, the Court in effect says that "because X has successfully proved [Ill]

reasonableness, necessity etc. • --it follows that the right has not been negated in its essential content.11

(k) The State respectfully submits that it has established all the requisites for limitation, and the essential content of Sec 11(2) has not been negated.

1 9.2.4 'NECESSARY

(a) IN para 203 of their heads of argument the Accused refer to the Siracusa Principles which were drawn up to guide the interpretation of the limitation clauses in the International Covenant on Civil and Political Rights (supra). The section relating to "necessary" is as follows:

"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 limita- tions recognized by the relevant article of the Covenant,

(b) responds to a pressing public or social need,

(c) pursues a legitimate aim, and [112/...] [112]

(d) is proportionate to that aim.

Any assessment as to the neces- sity, of a limitation shall be made on objective consi- derations. 11

(b) It is respectfully submitted that our earlier submissions relating to the practical problems, the lack of staff and infrastructure, no other sentence in the place of whipping, the desire to keep juveniles out of prison, the "grey area", the uncertainty as to whether probationary sentences are really effective, the wishes of society for effective sentences, the danger of the escalation of people taking the law into their own hands, the strong indications that tribal law and the public support corporal punishment, all establish this particular requisite.

LIMITATION OF THE OTHER RIGHTS

10.1 We have already submitted that the following sections are not applicable in this present matter:

: [113/...] [113]

(a) Sec 10 ("Dignity") - page 64 supra (b) Sec 8 ("Sex") - page 66 supra (c) ("Age") - page 74 supra (d) ("Race") - page 76 supra (e) Sec 30(l)(c) and (d) ("Children") - page 78 supra

10.2 If this Honourable Court should disagree with those submissions we respectfully submit that the limitations of those rights can be analogously justified on the grounds relating to a Sec 11(2) limitation (page 94 supra).

10.3 Only the limitation of the Sections 10 and 30(l)(d) rights require the further element of "necessary", and it submitted that the grounds advanced in respect of a Sec 11(2) limitation are analogously applicable. ii. ONUS AND OTHER MATTERS

(a) When dealing with this aspect the Accused make no mention of their onus (para 209).

(b) It seems to be well-settled law that the party alleging an infringement of a fundamental right must first establish an infringement, and then the onus shifts to the party seeking a limitation of that right (in this case the State) to prove justification for that limitation.

(c) But see the following:

"The onus is on the applicant to prove that a fundamental right or freedom has been infringed .... Insofar as the applicant contends that the regulation ... is unconstitutional, the applicant in my view [114/...] [114]

bears the onus of persuading the Court that the regulation is not reasonably justifiable .... and not on the State to show that it is."

See - Kauesa v Minister of Home Affairs 1995 (1) SA 51 (NmHC) at 55 H

(d) "Once it is established (on a balance of probabili- ties) that a statute does interfere with a. right . . . the onus moves to the person attempting to justify the inference or limitation ..." (my underlining)

See: Matinkinca supra at 490 C and F ; Oozeleni (supra) at 640 H • Nortie (supra) (page 104(e) of these heads)

(e) The question now arises - what have the Accused established?

(i) Ms Sloth-Nielsen (record pages 32 - 54)

It is submitted that nowhere does she state that there has been an infringement of a fundamental right. She deals principally with various options relating to sentence, and new trends that are taking shape.

(ii) Pr Argent (record pages 56 - 59)

He has "never witnessed a judicial whipping, nor have I examined a person who has undergone a judicial whipping" (para 3 of his affidavit).

[115/...] [115]

The rest of his affidavit relates • -to generalisations that do not, we submit, discharge the onus or which relate to the unconstitutionally of juvenile cuts.

Dr Dowdall (record pages 60 - 62) (iii) He has not had "personal experience of ... a judicial whipping" (para 4 of his affidavit.

His field of expertise obviously relates to abused children, and his speculates about I the effects of corporal punishment.

It is noteworthy that he does concede (para c) that "in some cases there might well be a deterrent effect ..." (my underlining)

(f) Another aspect to be placed on the scale is the

following:

Section 103(2) , as amended by Section 5(b) of Act 13/1944, enjoins the Court to "decide the matter on the assumption that the law ... is valid" when there is an allegation that the law is inconsistent with the Constitution.

If the Supreme law of the Republic (Section 4(1)), read with Sections 229 and 241(8) of the Constitution enjoins a judicial officer to "assume that the law is valid11, can there be any question of the particular sentences being unconstitutional? We submit not.

(h) It would seem that the position is as follows, in our

respectful view; [116/...] [116]

the Accused have adduced no evidence to prove,- on a balance of probabilities, that their funda- mental rights have been violated;

alternatively, should this Honourable Court disagree with that submission/ we submit that Section 103(2), as amended, read with Sections 4(1), 241(8) and 229 of the Constitution, precludes this Court from retrospectively ruling that the cuts imposed on the 5 Accused are unconstitutional when the Constitution itself has permitted, and thus validated, the Magistrates' actions in those cases;

(i) If the Accused have not discharged their onus or alternatively, if this Honourable Court is precluded from making a retrospective ruling, then the State does not have to justify the whipping at all.

(j) We respectfully submit that if this Honourable Court is precluded from making a ruling in respect of these 5 cases, then it is confined to the powers conferred upon it by Section 98(2)(c) of the Constitution, and the Court would in effect have to give an opinion (or something similar to a declaratory order) about the principle of juvenile cuts.

(k) This in turn raises the following problem - upon what facts is this Honourable Court going to come to a conclusion one way or another? The subjective opinions of the critics of mostly adult strokes, often expressed in emotional and extravagant generalisations, is surely no warrant for striking down a law which could have serious consequences. Part of Marais J's warning (page 107 supra) bears repeating, we respectfully submit: [117/...] [117]

"... that (a court) remind itself that the power-of decision which society has entrusted to it, is not to be used for . . . the foisting upon the public of its own possibly idiosyncratic credo ..."

(1) The S. A. situation is totally dissimilar to other countries. In this country -

there is a wave of lawlessness threatening society;

"lynch-law" is escalating, mostly at the behest of "peoples courts";

there are strong indications that tribal law and/or public opinion favours corporal punishment.

(m) SUGGESTED SOLUTION

Our primary submission, for the reasons we have advanced, is that Sec 294 of Act 51/1977 not be declared unconstitutional.

Alternatively, should this Honourable Court not agree with this, we would respectfully urge the Court to utilise the proviso to Sec 98(5) of the Constitution, and require Parliament (or the Department of Social Welfare) to:

find an alternative punishment to whipping;

increase staff and provide infrastructure to cope with the expected influx of juveniles (this would realistically take at least 2 years to implement)

[118/...] [118]

(n) THE BENEFITS OF THE SUGGESTED ALTERNATIVE SOLUTION

(i) there will not be a "vacuum11 if cuts were suddenly to be abolished;

(ii) if sufficient personnel and proper infra- structure were to be provided, the danger of the Court's ruling being discredited is removed;

(iii) a "breathing space" will be provided for all parties;

(iv) since the law will remain in force for the stipulated period (or until the situation is corrected) juveniles will not be sent to gaol in greater numbers, thereby lessening the strain on gaols and reformatories;

(v) moral sensibilities will have been catered for.

[119/...] [119]

DATED at CAPE TOWN this 22nd day of FEBRUARY 1995

F W KAHN SC ATTORNEY-GENERAL

J^SLA £O(fNSEL FOR THE STATE OFFICE OF THE ATTORNEY-GENERAL CAPE TOWN

TO THE REGISTRAR Constitutional Court Private Bag X32 BRAAMFONTEIN 2017

ADW LEE BOZALEK AND HATHORK Chambers CAPE TOWN

•oooOooo- 1 .;.„.,.. 6 SUNDAY TIMES, February 5 1995

CRIME Als'P

Aflllltcrv: 5O0 lashes for the man, and banish- ment or 500 lashes for the woman. Muffler: NecMacjng_or _ execution at

naked before receiving 4OO lashes, or execution. C'hiltl ahusc: 3flO lashes and banishment. Motor vcYiic»c offenders. Lashes or execution for first- timers.

l)y VICTOR K1IUPISO A NEW version of the people's cotirl li mctinc offence. If Items not out justice in East Rand townships and squat- returned to owners. ter camps. ra 300. Residents ol Ivory Park have drawn up a rough penal code, since adopted bv rcs'ulcnLs oi the Winnie MandeU Assault: souatter camp as well, which sets nut punishments (or offr-nccs ranging [rom contempt of court to murder Assault bv a The courts — once a formality that preceded the man on his wife: 50 lashes. gruesome necklace killings of the 80s — now imp-ise Contempt of punishments ranging from M> l.ishfs and a two-year ban- ishment for contempt ol court to necklacing or gunpiinl court: An additional 4O execution for murder. lashes and a two The list was devised hy rcside-ils of Ivory i'ark l.Hf list year following an outcry at the severe punishm'-nt cuen year banishment to two young men accused of burglary in a people's r.iiirl from the camp, there in iK-cember. The men were hacked lo death, douse) with pelro\ anil stt alight.. Another lour people have been sentenced to death and Picture: CHRIS COlUNCmfje.r executed in the settlement this year. HOUGH JUSTICE .., there Is no escape (mm the sentence ol a people's courl. This pictvuc was posed by models This week the boilie? of two youths who \eetc sh-il c^erution-s'.vle were l"unJ •111 ,ini| I'-m years' tiroiieH to him. tln*y would itiiptisod or. them "In the it v..is a STIOUS of(>'ncr t liol'l people's cwrl- nt Winnie Mandela siju.i'.- attacks on residents. be handed to I lie police. p.isl. people werr killcO I ler camp It is believed The "judge". CN'.'Culioncr But the Felice of of the court ate no", rip'.' f,')'-ernmen| ami i:»m- "It's ijiffiru:: tociinviBr jeni-pTodur« via Joti»f.Dnbui^ We alsu has been reported and u>u this v-rri: ^,n(J they «rt» in r.'.rrly arrive lo deal uith Interval ion ill bub. cstcrtjil (torn heirs called niunity leaJers say th-r- favour ol the cnurls as they jieoplc about thc.e ille^ to attracl tourisis directly In our ally comprise young 'com- rtw t r^portc'l crimes — and. Httlontt (ovti l.> ,ii-fi».•: lv:lpi:J nuinUnn la--v ami co'irts beraijjo they .".r which teems wilh wiliiiife anil rades" There is no c-c.ij-c wVn they ilo. s\j"ip'?t\s ate Mokobi Mid Ifcenirporl, which had an tinMing of such i•imru order in the settlements s-'fn a^ a iMerr'.Ti',; ;.\ Itot iftfrittnichirt. would of inttrr*l." those accused of Si'tioi:- CTHIli'-; Oft':*! lele.iii'd without bf- Thi' i'i;urL~. riime jN'ui Thele-nifr at lh- Winni-.- f)n» man. an isnr-m- Mr Zilha. 'AIC- urcnl r-> mtreUI traffic In tht are crimes are often rir.i.^o-i - i"»; <-tntfeil or .ire !•:! out 1:1 ',! " fill- wh-n r>;-i'!"n L.< >)( Nl.imlcl.i fiVJ.it'<•( ciiiiji, -•luycJ •C-year old f.Hh-r d''nL-tih.ir.rt Miip<-cL=. r,-. II "oold »I«i boi»llb<1oeal economy holotc the court b;- a iv..*b ( fm luit when II bMonti (uji<€ptr jiional laitr thi> If a sti' I'ai;! M,ir-.i-i,i. 5.I-..1 h- iii>. "I ti-ilr. s.liil "fti; ".ni'porl to ihe police ••"'Ir.i%'••'• "••M'J>ni.; (rum 1 The tit™ .'ppt-.ic on the fit d.i'e ;•' ; ther': curt.- l»v;.iuse thev Kasl Fi.unl poln-'* Such cm.- * ••V.XHV. r. lwKn Ihf rrjinnai cnic anil pr III.- ;•.•>!,.;.• t-. M'jf;.)(i Ihn^t Th.*y Itim'.v spoVrr.ir,,iii Warrant l)Hi he 'iippor!..--'! h-, ;i:r- -• le tntetprij*. hf iiddvd will itceivc an .ivkliiion.il I! .lll^C'J ofi' s.-vi-n; s-'nterift.-s will be l m.il s';ci'Jl> ' h>' a.|-'i-]

--X boy was cross-examined by Supreme Court Reporter fence counsel, Mr Justice A 12-YEAR-OLD boy held in a van Devemer intervened u Robertson ceil on a theft Court told complex questions tin Afrika charge yesterday told the were asked of him and re); Supreme Court how cell- them in simpler language. mates had sod prni seek beaten Medical evidence earlier of abuse, week by Professor W P Nel. and foreea "a i;j-velr-old fel- performed the post-mortem, low detainee to drink disin- that between 80 2nd 190 bn Tectant, had been found on Neville's' The court also heard ihai the sodomy while 257c of his body had ' sttackers had assaulted Neville covered by burn wounds. Snymsn with sosp placed inside A child of Neville's \vi a sock and thai his head had been (33kg) could die of burn wo forced under water in ihe show- and dagga of lhat extent, prof Nel sail er. His body had been coven This was evidence in the trial while one of the youths had held congealed blood with a ma of Mr Mark Reynard. Mr Issk Ja- him. subcutaneous loss of blood \> cobs and Mr Marius Samuels, all He said that Neville was then was sufficient to cause Nev 18, and four youths who are al- struck with the top of a tap and death. leged to have murdered Neville his head held under water in the Seven of his ribs had Snyman in the Robertson cells on shower. broken, the court heard. September 24. 1992. The men then struck Neville Prof Nel said the injuries1! The court previously heard with the kerrim cue and then Neville going into a sta that the men and the youths had forced to drink "dip" (disinfec- shock, which led to vomitin also assaulted Neville with a tant), the boy said. caused him to die by suffoc "kerrirn" cue, held him under a Asked by Mr Kevin Warner, pro The stale closed its case y boiling hot shower until his skin Deo counsel for Mr Samuels, if day afternoon and the iria' 'peeleo and kickedand puncb.ed the inmates in the cell had tinues today. smoked dagea. the boy said they Mr N Lov*rt^i aopeaiec to' ihe sw.e. Thm. ' ~ " ££*l. Mi T (.', "trquson. Mi '-Wrier. V. •"""STfe boy told the court Mr Rey- had done so before ihe assault. fidA. Mr Ian Swain, Mr \V Srr:,i »r>s PV.-s C: nird had sodomised Neville Throughout the time that the P'O Deo

Supreme Court Reporter sock around Neville which Mr Reynard and ! A EOY awaiting-trial prison- Sodomised, used to throttle him. er was sodomised in his cell, The boy said Neville brutally assaulted and died breathing and was plac< after he refused to be bullied his (the boy's) sleeping into giving meat from his sup- throttled Under cross-examir per to older prisoners, the Mr N Louwrens, couhs Supreme Court heard yester- state, the boy said pro in food row tween Neville and Mr day. began when the latter < A 14-year-old boy gave this evi- youih then assaulted Neville. he hand over meat foi dence yesterday. He is on trial He was then forced into the supper. He testified tr with three 18-year-old youths and shower and the hot water left on older boys had previi three other younger boys charged while Mr Reynard and Mr Jacobs lied the younger ones with the murder of 13-year-old prevented him from leaving. ing over their meal. Neville Snyman in a Robertson When Neville crawled out of the The boy said Nevill prison cell. shower Mr Samuels ordered the fused to hand over his i Mr Mark Reynard, Mr Isak Ja- boys in the cells to hit him with Mr Samuels demanded cobs, Mr Marius Samuels and the soap placed in a sock. after he had been sod boys have all pleaded not guilty "I did not want lo hit him but his cell four days bef< to the charge. Mr Samuels said I must. 1 was saull in the shower. The boy told the court that on afraid of him because I thought The trial continues September 24, 1992, a 15-year-old the same would happen lo me if 1 Mr Juvtk* W A van Deveniet w, youth forced Neville lo drink dis- did not." Mf John Abel, Mr t M Fer()u*on. ti infectant and soapy water. Mr Mi K>rt»n Roux. Mr Ian Swoin. Mt The boy said he stopped when Mri Com* Bin* «ppe*r«J pro Deo Samuels and the 15-year-old the 15-year-old youth placed a Vie boys. 106

11 justifiable in an open and democratic society based on freedom and equality", sometimes, whether it is "necessary", and always, whether it "negates" the "essential content11 of the entrenched right.

Those are questions of judgment rather than questions of interpretation. While the criteria themselves may not be notionally malleable or elastic, they are eminently capable of accommodating shifts in societal attitudes over the years. That is, I think, both their weakness and their strength. Their strength, because non but those who are ignorant of the enormous shifts in societal attitudes to all manner of things, which have occurred over relatively short periods of time, would deny that such shifts do occur, and a constitution which seeks to strait-jacket society in its efforts to move with the times will excite, in the end, public disaffection. Their weakness, because they provide some scope for those who may be so inclined, to tinker too frequently with the law in response to short term societal concerns which are likely to prove to be transient and ephemeral, and may even be the superficial product of something resembling public hysteria, when all is said and done, what more can reasonably be expected from a court than that it approach these questions [107/...] LIST OF AUTHORITIES

S v Williams 1994 (4) SA 126 (E)

Criminal Procedure Act, 51/1977

Constitution Act, 200/1993

Ex Parte Attorney-General, Namibia 1991 (3) SA 76 (NmSC)

Interpretation Act, 33/1957

R vs Mazibuko 1958 (4) SA 353 (A) at 356

R vs Sillas 1959 (4) SA 305 (A) at 308

S vs Innes 1979 (1) SA 783 (C) at 786

PG Noord Kaap vs Hart 1990 (1) SA 49 (A) at 55

S vs Mpetha 1985 (3) SA 702 (A) at 708

S vs Crawford 1979 (2) SA 48 (A) at 56

S vs Mpendokana 1987 (3) SA 20 (C)

S vs R 1993 (1) SA 476 (A) at 484

S vs Juvenile 1990 (4) SA 151 (ZSC) at 176 C

Catholic Commission v AG, Zimbabwe 1993 (4) SA 239 (ZSC)

Qozeleni v Minister of Law and Order 1994 (3) SA 625 (E)

Kalla v The Master 1995 (1) SA 261 (T)

[2/...] [2]

Bell v Voorsitter, Rasseklassifikasieraad 1968 (2) SA 678 (A)

S v Sixaxeni 1994 (3) SA 733 (C)

S v Lombard 1994 (3) SA 776 (T)

S v Saib 1994 (4) SA 554 (D + CLD)

S v Ndima 1994 (4) SA 626 (D + CLD)

S V Coetzee 1994 (2) SACK 791 (W)

S v Marwane 1982 (3) SA 717 (A)

S vs Heita 1987 (1) SA 311 (SWA)

Matinkinca v Council of State, Ciskei 1994 (4) SA 472 (CkGD)

De Welzim v Regering van Kwazulu 1990 (2) SA 915 (N)

Qokose v Chairman, Ciskei 1994 (2) SA 193 (CkGD)

S v Ncube and Others 1988 92) SA 702 (ZSC)

Tyer v U.K. 1978 (2) EHHR 1

R v Karg 1961 (1) SA 231 (A)

Nortje and Another v AG, Cape (Unreported Case no 9125/94, dated 7.2,95)

Mahalik, 1989 SACJ, 328

Du Toit, Straf in S.A.

Regulation 100 (4) of the Prison Regulations

[3/...] [3]

SA Journal of Criminal Justic (1993) Vol 6, page 337

Kauesa v Minister of Home Affairs 1995 (1) SA (NmHC) 55

S v Kumalo 1965 (4) SA 565

S v Maisa 1968 (1) SA 271 (T)

S v Myute & Others and S v Baby 1985 (2) SA 261

S v Machwili 1986 (1) SA 156 NPD

S v Hotsoesoana 1 1986 (3) SA 350 (N)

S v Zimo & Andere 1971 (3) SA 337 (T)

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)

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)

S v V en 'n Ander 1989 (1) SA 532

Khala v Minister of Safety 1994 (2) SACR 361 (W)

[4/...] I ' [4]

Nyamakazi v President of Bophuthatswana 1992 (4) SA 540 (BGE>)

Cahalia, Fundamental Rights of the New Constitution

Sloth-Nielsen, Acceptable State Violence

Fletcher v Fletcher 1948 (1) SA 130 (A)

R V VJyhte (ISSo) 51 DLR (4th) 481

R v Oakes (1986) 26 DLR (4th) 200

Law Society of British Columbia (1989) 56 DLR 1 (4th) at 25

Sieghart, International Law of Human Rights, 161

Bailey, Civil Liberties, 750

Universal Declaration of Human Rights

African Charter of Human Rights

International Covenant on Civil and Political Rights

European Convention on Human Rights

S v Majavu 1994 (2) SACR 265 (Ck)

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