Page:S v Williams and Others.djvu/22

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breaches of that section. I follow the same approach in the present case.

[57] Applicants claimed further that even if the right was subject to limitation, juvenile whipping provisions failed to satisfy the requirements of section 33(1) of the Constitution. The attitude of the State was that juvenile whipping was neither cruel nor inhuman and it was no more degrading than other acceptable punishments; it was contended that to the extent that the punishment could be said to be in some way humiliating or degrading, it was within permissible constitutional limits because of the provisions of section 33(1) of the Constitution.

[58] The enquiry involves testing the measures adopted against the objective sought to be achieved. The gist of it, put in the context and the language of section 33(1), really amounts initially to three questions, namely: (a) whether the means used are reasonable; (b) whether they are justifiable in the context of the civilized society we hope we are or which we, through this Constitution, are aspiring to be; and (c) whether they are necessary to attain the objective. The test relies on proportionality, a process of weighing up the individual's right which the State wishes to limit against the objective which the State seeks to achieve by such limitation.

[59] This evaluation must necessarily take place against the backdrop of the values of South African society as articulated in the Constitution and in other legislation, in the decisions of our courts and generally against our own experiences as a people.

[60] In State v Makwanyane and Mchunu Chaskalson P deals with the "proportionality" test which is also implicit in the limitation of rights in Canada and the European Court.[1] As a general conclusion he notes that the limitation of constitutional rights for a purpose that is necessary in a democratic society involves the weighing up of competing values, and ultimately an assessment based on proportionality. He points out how the German Constitutional Court applies the proportionality test in dealing with limitations authorised

  1. Supra note 52, at paragraphs 104–109.