emphasis on retribution and vengeance rather than on correction, prevention and the recognition of human rights.
[51] In interpreting section 11(2) of the Constitution, however, we should not only have regard to the position in other jurisdictions. This Court has held that in interpreting the rights enshrined in Chapter 3 of the Constitution, a purposive approach should be adopted.[1] In seeking the purpose of the particular rights, it is important to place them in the context of South African society. It is regrettable, but undeniable, that since the middle 1980's our society has been subjected to an unprecedented wave of violence. Disputes, whether political, industrial or personal, often end in violent assaults. In addition, during the same period, there has been a marked increase in violent crimes, such as armed robbery and murder.
[52] The process of political negotiations which resulted in the Constitution were a rejection of violence. In this context, it cannot be doubted that the institutionalised use of violence by the State on juvenile offenders as authorised by section 294 of the Act is a cruel, inhuman and degrading punishment. The Government has a particular responsibility to sustain and promote the values of the Constitution. If it is not exacting in its acknowledgement of those values, the Constitution will be weakened. A culture of authority which legitimates the use of violence is inconsistent with the values for which the Constitution stands.
[53] The conclusion that I have reached, that section 294 of the Act infringes the rights contained in sections 10 and 11(2) of the Constitution is consistent with the view that has been expressed by many South African judges before. As already indicated, the courts in this country have acknowledged the international consensus against corporal punishment and, in a sense, associated themselves with it in many judgments which have criticised, sometimes in the strongest terms, the infliction of corporal punishment.[2] Judicial condemnation has resulted in adult whipping being imposed only in exceptional
- ↑ S v Zuma and Others 1995(4) BCLR 401 (SA) at 410F–412H ; S v Makwanyane and Mchunu supra note 52, at paragraphs 9 and 10.
- ↑ See the cases cited supra notes 7 to 12.
