S v Williams and Others

• Jurisdiction: South Africa
• Judge: Chaskalson P, Ackermann J, Didcott J, Kentridge AJ, Kriegler J, Langa J, Madala J, Mahomed J, Mokgoro J, O'Regan J and Sachs J
• Judgment Date: 09 June 1995
• Docket Number: CCT/20/94
• Court: Constitutional Court
• Hearing Date: 24 March 1995
• Citation: 1995 (3) SA 632 (CC)

Langa J:

C [1] This matter has been referred to this Court by the Full Bench of the Cape of Good Hope Provincial Division of the Supreme Court (Conradie, Scott and Farlam JJ). It is a consolidation of five different cases in which six juveniles were convicted by different magistrates and sentenced to receive a 'moderate correction' of a number of strokes with a light D cane. The issue is whether the sentence of juvenile whipping, pursuant to the provisions of s 294 of the Criminal Procedure Act, [1] is consistent with the provisions of the Constitution of the Republic of South Africa Act. [2]

[2] Mr Bozalek appeared with Mr Hathorn as amici curiae on behalf of the E accused; they were assisted by the Legal Resources Centre's Cape Town office. We are indebted to both counsel and to the Legal Resources Centre. Before the date of the hearing, the President of this Court was advised by the Attorney-General of the Cape of Good Hope Provincial Division that he wished to withdraw the argument which had been filed on F his behalf (and on behalf of the State) as he shared the view that the provisions relating to corporal punishment in s 294 of the Act were unconstitutional. Mr Slabbert, who is a member of the Attorney-General's staff, however, agreed to present the opposing argument as amicus curiae in accordance with the written argument which had been filed on behalf of G the State. We place on record our appreciation to him for having undertaken this task.

[3] Purely for the sake of convenience, I shall refer to the accused as the applicants and to the position adopted by Mr Slabbert in his argument as that of the State.

H [4] Although each of the cases has a history of its own, much is in common. The applicants are all males and they are all juveniles. Three of them, namely Williams, Koopman and Mampa, were each sentenced to suspended prison sentences in addition to the juvenile whipping. The remaining three were sentenced to juvenile whipping only. All the trials had commenced before 27 April 1994; each of the sentences was passed after I 27 April 1994.

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A [5] The Provincial Division became seized of the matters in two ways: all five cases were subject to automatic review in terms of s 302(1)(a) of the Act because of the terms of imprisonment, albeit suspended, imposed on the applicants themselves or on their fellow accused who do not feature in the present proceedings. In addition to this, Mr A P Dippenaar, who presided over the case involving Willams, requested that the sentence of strokes be B subjected to special review in terms of s 304(4) of the Act. He took this step because he doubted whether juvenile whipping was a permissible punishment in the light of the provisions of the Constitution and in view of the decision in Ex parte Attorney-General, Namibia: In re Corporal C Punishment By Organs of State. [3]

[6] Whether, as a matter of strict law, the magistrate was correct in deferring the execution of the whipping [4] is not in issue. He deserves to be commended for treating as a matter of priority an issue involving fundamental human rights and, in particular, the application of the provisions of chap 3 of the Constitution. He indeed went further than D merely taking the initiative to submit the matter for special review.

[7] A sentence of juvenile whipping in terms of s 294 of the Act is not normally reviewable; the whipping is therefore administered immediately after sentence is passed. There must have been countless instances in the past where Courts sitting on appeal or review have had to set aside E sentences imposed by trial courts because of irregularities; where those offenders had been sentenced to a juvenile whipping, the punishment would almost invariably have been carried out already. [5] Once a whipping has been administered, as is the with five of the applicants in this matter, any decision which this Court comes to will make no practical difference to them for purposes of the present proceedings. Mindful of this, Mr F Dippenaar ordered that the sentence of five strokes imposed by him on the applicant Williams should not be carried out until the issue, whether or not the punishment was consistent with the Constitution, had been finally decided by the appropriate Court. The concern he displayed is to be welcomed.

G [8] Courts do have a role to play in the promotion and development of a new culture 'founded on the recognition of human rights', [6] in particular with regard to those rights which are enshrined in the H

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A Constitution. It is a role which demands that a court should be particularly sensitive to the impact which the exercise of judicial functions may have on the rights of individuals who appear before them; vigilance is an integral component of this role, for it is incumbent on structures set up to administer justice to ensure that, as far as B possible, these rights, particularly of the weakest and the most vulnerable, are defended and not ignored. One of the implications of the new order is that old rules and practices can no longer be taken for granted; they must be subjected to constant reassessment to bring them into line with the provisions of the Constitution.

C [9] It was no doubt because of these considerations that Conradie J advised magistrates for their guidance that, pending the decision of this Court, it would be undesirable for sentences of whipping, in terms of s 294 of the Act, to be imposed and that, where such sentence had in fact been imposed, it might not be appropriate for it to be carried out until a D ruling from the Constitutional Court had been obtained.

[10] When the matter was argued before this Court, it was common cause between the applicants and the State that the provisions in our law which authorise corporal punishment for adults are inconsistent with the Constitution. This consensus of course does not remove those provisions E from the statute book; they have not been set aside by a competent body or authority and the relevant legislation has not been repealed. The agreement is, however, an acknowledgment of the effect which the provisions of the Constitution have in forcing a reassessment of the laws that govern us against the values expressed in the Constitution. The F effect is to demarcate the parameters of civilised behaviour, at least at the level of the administration of justice.

[11] Apart from provisions which permit juvenile whipping, the law presently allows whipping as a punishment which may be imposed upon adult G males between the ages of 21 and 30 years. This is notwithstanding the fact that over the last 30 years at least, South African jurisprudence has been experiencing a growing unanimity in judicial condemnation of corporal punishment for adults. Criticism of the practice has been consistent and emphatic, it being characterised as 'punishment of a particularly severe kind . . . brutal in its nature . . . a severe assault upon not only the H person of the recipient but upon his dignity as a human being'; [7] 'a very severe and humiliating form of punishment'; [8] ''n uiterste strafvorm'; [9] ''n erg vernederende en fisies baie pynlike vorm van I

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A bestraffing'; H [10] 'cruel and inhuman punishment'. [11] This tone of condemnation is to be found, not only in many decisions in this country, [12] but also in other jurisdictions. [13]

[12] If adult whipping were to be abolished, it would simply be an B endorsement by our criminal justice system of a world-wide trend to move away from whipping as a punishment. As far back as 1947, the Lansdown Commission of Enquiry, while recommending the retention of corporal punishment in limited form in South Africa, made the point that most civilised countries in the world had abandoned corporal punishment as a method of dealing with crime. The report of the Viljoen Commission, C tabled in Parliament in January 1977, also endorsed the view that whipping for adults was a brutal assault, not only on the person of the recipient, but also on his dignity as a human being.

[13] The provisions being challenged, however, relate to juvenile whipping. The State was at pains to point out that there are differences D between adult and juvenile whipping. The contention was that corporal punishment was not in itself objectionable, particularly when restricted to male youths; what rendered adult whipping constitutionally unacceptable was the manner in which it was executed. The nub of the enquiry is, however, not the legality or otherwise of adult whipping or how different E it is from juvenile whipping. The issue is whether juvenile whipping, on its own merits or demerits, is consistent with the Constitution.

[14] The Act contains a number of related provisions which deal with the infliction of corporal punishment. I [14] Insofar as juveniles are F concerned, no minimum age is fixed in the Act, although practice and judicial decisions would seem to have fixed the lower age limit at nine years. [15] A whipping may not be imposed 'if it is proved that the existence of some psychoneurotic or psychopathic condition contributed towards the commission of the offence'. [16] Section 294(1)(a) provides for a whipping to be carried out 'by such person and in such place and G with such instrument as the court may determine'. We were informed that, in practice, a cane is used, but it is significant that the Act leaves this to the discretion of the magistrate. [17] The maximum number of strokes that

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A may be imposed at any one time is seven. [18] Juvenile whipping is inflicted over the buttocks, which must be covered with normal attire [19] and a parent or guardian may be present. [20] No whipping may be carried out unless a district surgeon or an assistant district surgeon has certified that the juvenile 'is in a fit state of health to undergo the B whipping'. [21]...