into line with the provisions of the Constitution.
[9] It was no doubt because of these considerations that Conradie J advised magistrates for their guidance that, pending the decision of this Court, it would be undesirable for sentences of whipping, in terms of section 294 of the Act, to be imposed and that where such sentence had in fact been imposed, it might not be appropriate for it to be carried out until a ruling from the Constitutional Court had been obtained.
[10] When the matter was argued before this Court, it was common cause between the applicants and the State that the provisions in our law which authorise corporal punishment for adults are inconsistent with the Constitution. This consensus of course does not remove those provisions from the statute book; they have not been set aside by a competent body or authority and the relevant legislation has not been repealed. The agreement is, however, an acknowledgement of the effect which the provisions of the Constitution have in forcing a re-assessment of the laws that govern us against the values expressed in the Constitution. The effect is to demarcate the parameters of civilised behaviour, at least at the level of the administration of justice.
[11] Apart from provisions which permit juvenile whipping, the law presently allows whipping as a punishment which may be imposed upon adult males between the ages of 21 and 30 years. This is notwithstanding the fact that over the last thirty years at least, South African jurisprudence has been experiencing a growing unanimity in judicial condemnation of corporal punishment for adults. Criticism of the practice has been consistent and emphatic, it being characterised as "punishment of a particularly severe kind … brutal in its nature … a severe assault upon not only the person of the recipient but upon his dignity as a human being";[1] "a very severe and humiliating form of punishment";[2] "‘n uiterste strafvorm";[3] "‘n erg vernederende en fisies baie pynlike vorm van bestraffing";[4] "cruel and inhuman
- ↑ Fannin J in S v Kumalo and Others 1965(4) SA 565 (N) at 574F; see also S v Maisa 1968(1) SA 271 (T) at 271E.
- ↑ De Wet CJ in S v Myute and Others and S v Baby 1985(2) SA 61 (Ck) at 62H; see also S v Zimo en Andere 1971(3) SA 337 (T) at 338G; S v Ruiters et al supra note 5, at 530B; S v Seeland 1982(4) SA 472 (NC) at 476H.
- ↑ Conradie J in S v Staggie 1990(1) SACR 669 (C) at 675C.
- ↑ MT Steyn in S v V en 'n Ander supra note 5, at 543D.
