punishment."[1] This tone of condemnation is to be found, not only in many decisions in this country,[2] but also in other jurisdictions.[3]
[12] If adult whipping were to be abolished, it would simply be an endorsement by our criminal justice system of a world-wide trend to move away from whipping as a punishment. As far back as 1947, the Lansdown Commission of Enquiry, while recommending the retention of corporal punishment in limited form in South Africa, made the point that most civilized countries in the world had abandoned corporal punishment as a method of dealing with crime. The report of the Viljoen Commission, tabled in Parliament in January 1977, also endorsed the view that whipping for adults was a brutal assault, not only on the person of the recipient, but also on his dignity as a human being.
[13] The provisions being challenged, however, relate to juvenile whipping. The State was at pains to point out that there are differences between adult and juvenile whipping. The contention was that corporal punishment was not in itself objectionable, particularly when restricted to male youths; what rendered adult whipping constitutionally unacceptable was the manner in which it was executed. The nub of the enquiry is, however, not the legality or otherwise of adult whipping or how different it is from juvenile whipping. The issue is whether juvenile whipping, on its own merits or demerits, is consistent with the Constitution.
[14] The Act contains a number of related provisions which deal with the infliction of corporal punishment.[4] In so far as juveniles are concerned, no minimum age is fixed in the Act although practice and judicial decisions would seem to have fixed the lower age limit at
- ↑ Greenland J in S v F supra note 5, at 460I.
- ↑ See S v Ximba and 2 Others 1972(1) PH H66 (N); S v Motsoesoana 1986(3) SA 350 (N) at 355D; S v Daniels 1991(2) SACR 403 (C) at 406B.
- ↑ See e.g., S v Ncube; S v Tshuma; S v Ndlovu 1988(2) SA 702 (ZSC); Ex Parte Attorney-General, Namibia: in re Corporal Punishment supra note 3.
- ↑ Some sections contain general provisions which are applicable to both adults and juveniles, e.g. section 276 which lists whipping as one of a range of punishments which may be imposed and section 292 which provides general guidelines for whipping.
