Page:S v Williams and Others.djvu/23

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by the German Constitution:

"It has regard to the purpose of the limiting legislation, whether the legislation in fact achieves that purpose, whether it is necessary therefor, and whether a proper balance has been achieved between the value enhanced by the limitation, and the fundamental right that has been limited."[1]

[61] The grounds on which the State sought to justify juvenile whipping were, firstly, that it made good practical sense to have juvenile whipping as a sentencing option. The practice had advantages for both the offender and the State, particularly in view of a shortage of resources and the infrastructure required for the implementation of other sentencing options for juveniles. Secondly, it was suggested that juvenile whipping was a deterrent.

[62] The purpose of section 294 of the Act is to provide a sentencing option for the punishment of juvenile offenders. What must be addressed is whether it is reasonable, justifiable and necessary to resort to juvenile whipping, notwithstanding the fact that it "constitutes a severe assault upon not only the person of the recipient, but upon his dignity as a human being."[2] The primary argument advanced in favour of juvenile whipping was that it constitutes a better alternative to imprisonment, particularly in the so-called "grey area" crimes. This was a reference to instances where a court has to deal with an offence which is not so serious as to merit a custodial sentence but is serious enough to render inappropriate the use of "softer" sentences.

[63] It was argued that sentencing alternatives for juveniles were limited and that this country did not have a sufficiently well-established physical and human resource base which was capable of supporting the imposition of alternative punishments. This is of course an argument based on pragmatism rather than principle. It is a problem which must be taken seriously nevertheless. It seems to me, however, to be another way of saying that our society has not yet established mechanisms to deal with juveniles who find themselves in conflict with the law; that the price to be paid for this state of unreadiness is to subject juveniles to punishment that is cruel, inhuman or degrading. The proposition is untenable.

  1. Supra note 52, at paragraph 108.
  2. Fannin J in S v Kumalo supra note 7, at 547F.