9 years.[1] A whipping may not be imposed "if it is proved that the existence of some psychoneurotic or psychopathic condition contributed towards the commission of the offence."[2] Section 294(1)(a) provides for whipping to be carried out "by such person and in such place and with such instrument as the court may determine." We were informed that, in practice, a cane is used, but it is significant that the Act leaves this to the discretion of the magistrate.[3] The maximum number of strokes that may be imposed at any one time is seven.[4] Juvenile whipping is inflicted over the buttocks, which must be covered with normal attire[5] and a parent or guardian may be present.[6] No whipping may be carried out unless a district surgeon or an assistant district surgeon has certified that the juvenile "is in a fit state of health to undergo the whipping."[7] Juveniles over the age of 17 years may be sentenced to a whipping in addition to any other sentence, provided that where a sentence of imprisonment is imposed, the whole period must be suspended.[8]
[15] The applicants sought to impugn section 294 of the Act on a number of grounds. It was contended that this provision violated sections 8, 10, 11, and 30 of the Constitution. These provisions are contained in Chapter 3, which is generally referred to as the Chapter on Fundamental Rights.
[16] Section 8(1) of the Constitution guarantees to each person "the right to equality and to
- ↑ See S v Du Preez 1975(4) SA 606 (C).
- ↑ Section 295(2).
- ↑ Section 292(2) of the Act prescribes a cane as the instrument to be used for adult whiping. See also section 92(1)(c) of the Magistrates' Court Act No. 32 of 1944 (as amended) which prescribes that a cane only may be used for whipping. This provision, however, excludes juvenile whipping in terms of section 294. During oral argument, we were informed that, in practice, canes conforming to the dimensions listed in the regulations of the Department of Correctional Services are used for both adult and juvenile whipping. See Regulation 100(4) promulgated in terms of section 94 of the Correctional Services Act No. 8 of 1959 (as amended) which provides that canes used for the whipping of prisoners should approximate 125cm in length and 12 mm in width for adults and 100cm by 9mm for juveniles.
- ↑ Section 294(1)(a).
- ↑ Section 294(2).
- ↑ Section 294(3).
- ↑ Section 294(5).
- ↑ Section 294(1)(b).
