Page:S v Williams and Others.djvu/31

Rh "… the thought of a severe whipping, whether as a result of experience or only of an act of imagination, could well have deterred very many, although it is all too evident that very many have not thereby been deterred."

What has not been shown is that such deterrent value as might exist is sufficiently significant to enable the State to override a right entrenched in the Constitution. All indications are to the contrary. While juvenile whipping has a brutalising effect, it has not been shown that it has the capacity to deter more than other punishments would do. Moreover, I agree with the remarks of Fannin J in S v Kumalo and Others:

"Within comparatively recent times corporal punishment of quite horrifying severity were inflicted for a great number of offences, and I, for one do not believe that the general deterrent effect of such punishments justified the suffering and indignity which were inflicted upon those who were so punished. I am of the opinion that a whipping is a punishment of a particularly severe kind. It is brutal in its nature and constitutes a severe assault upon not only the person of the recipient but upon his dignity as a human being. The severity of the punishment depends, to a very large extent, upon the personality of the officer charged with the duty of inflicting it, and over that the court ordering the punishment can have little, if any, control."

Howie AJA, quite correctly in my view, warned against the idea that the accused should be sacrificed on the altar of deterrence. To this I would add that this is even more so when the court is dealing with a youthful offender.

If, as I have found, the deterrence value is so marginal that it does not justify the imposition of this special punishment, involving as it does the deliberate infliction of physical pain, one has to conclude that the sole reason for retaining it is to satisfy society's need for retribution. While retribution is, in itself, a legitimate element of punishment, it is not the only one; it should not be the overriding one. It cannot, on its own, justify the existence of