as they should be,[1] the provision refers to seven distinct modes of conduct, namely: torture; cruel treatment; inhuman treatment; degrading treatment; cruel punishment; inhuman punishment and degrading punishment.
[21] In common with many of the rights entrenched in the Constitution, the wording of this section conforms to a large extent with most international human rights instruments.[2] Generally, the right is guaranteed in absolute, non-derogable and unqualified terms; justification in those instances is not possible.[3]
[22] The interpretation of the concepts contained in section 11(2) of the Constitution involves the making of a value judgment which "requires objectively to be articulated and identified, regard being had to the contemporary norms, aspirations, expectations and sensitivities of the … people as expressed in its national institutions and its Constitution, and further having regard to the emerging consensus of values in the civilised international community …"[4]
[23] While our ultimate definition of these concepts must necessarily reflect our own experience and contemporary circumstances as the South African community, there is no disputing that valuable insights may be gained from the manner in which the concepts are dealt with in public international law as well as in foreign case law.
- ↑ See S v Ncube, S v Tshuma, S v Ndhlovu supra note 13, at 714I–715D and Ex Parte Attorney General, Namibia: In re Corporal Punishment supra note 3, at 86A–C.
- ↑ Article 5 of the Universal Declaration of Human Rights, adopted by the General Assembly of the United Nations on 10 December 1948, forbids "torture or … cruel, inhuman or degrading treatment or punishment." According to Sieghart, The International Law of Human Rights (1983) 159–160 and 162, the wording has been followed with minor variations in a number of other international instruments and national constitutions adopted since 1949. See e.g., Article 7 of the International Covenant on Civil and Political Rights (ICCPR), which is identical; Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ( "torture or … inhuman or degrading treatment or punishment"); Article 5 of the Banjul Charter on Human and Peoples' Rights (African Charter) ("… torture, cruel, inhuman or degrading punishment and treatment").
- ↑ Article 8 of the Namibian Constitution, for instance, provides: "(1) The dignity of all persons shall be inviolable. (2)(a) … (b) No persons shall be subject to torture or to cruel, inhuman or degrading treatment or punishment." No limitation applies to this provision. See also Ex Parte Attorney General, Namibia supra note 3, at 86D; Sieghart op cit at 161.
- ↑ Mahomed AJA in Ex Parte Attorney-General, Namibia supra, note 3, at 86 I.
