priority an issue involving fundamental human rights and in particular, the application of the provisions of Chapter 3 of the Constitution. He indeed went further than merely taking the initiative to submit the matter for special review.
[7] A sentence of juvenile whipping in terms of section 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 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.[1] Once a whipping has been administered, as is the case 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 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.
[8] Courts do have a role to play in the promotion and development of a new culture "founded on the recognition of human rights,"[2] in particular, with regard to those rights which are enshrined in the 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 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 re-assessment to bring them
- ↑ See S v Ruiters en Andere, S v Beyers en Andere, S v Louw en 'n Ander 1975(3) SA 526 (C); S v M 1982(1) SA 240 (N); S v V en 'n Ander 1989(1) SA 532 (A); S v F 1989(1) SA 460 (ZHC); S v Zuzani and Others 1991(1) SACR 534 (Tk).
- ↑ See the provision in the Constitution under the heading "National Unity and Reconciliation."
to the whipping, the magistrate does not have the jurisdiction to suspend the infliction of the whipping pending the result of the review. The case might of course be distinguishable on the basis that what is at issue here and what is sought to be reviewed, is the sentence of whipping.
