and public opinion is uncertain and I am not convinced that they are synonymous. It is clear, as was pointed out by Chaskalson P in State v Makwanyane and Mchunu that public opinion, on its own, is not determinative of constitutional issues:
"If public opinion were to be decisive there would be no need for constitutional adjudication. The protection of rights could then be left to Parliament, which has a mandate from the public … but this would be a return to parliamentary sovereignty, and a retreat from the new legal order established by the 1993 Constitution."[1]
[37] It is not clear to me however that it is necessary to adopt the American concept of "contemporary standards of decency" or that it is necessary to give definitive meaning to that phrase. Our Constitution is different to the American constitution. Section 35(1) of the Constitution provides expressly that the rights entrenched in it, including sections 10 and 11(2), shall be interpreted in accordance with the values which underlie an open and democratic society based on freedom and equality. In determining whether punishment is cruel, inhuman or degrading within the meaning of our Constitution, the punishment in question must be assessed in the light of the values which underlie the Constitution.
[38] The simple message is that the State must, in imposing punishment, do so in accordance with certain standards; these will reflect the values which underpin the Constitution; in the present context, it means that punishment must respect human dignity and be consistent with the provisions of the Constitution.
[39] There is unmistakably a growing consensus in the international community that judicial whipping, involving as it does the deliberate infliction of physical pain on the person of the accused, offends society's notions of decency and is a direct invasion of the right which every person has to human dignity. This consensus has found expression through the courts and legislatures of various countries and through international instruments. It is a
- ↑ Case No. CCT/3/94 at paragraph 88.
217 US 349 (1910) at page 378, the court observed that the Eighth Amendment is progressive and does not merely prohibit cruel punishments known in 1688 and 1787, but may acquire wider meaning "as public opinion becomes enlightened by humane justice." In Jackson v Bishop 404 F 2d 571 (1968) at page 579, reference is made to "contemporary concepts of decency and human dignity and precepts of civilisation which we profess to possess"; see also Nelson v Heyne 491 F 2d 352 (1974).
