Page:S v Williams and Others.djvu/33

Rh punishment. It is a practice which debases everyone involved in it.

I have already referred to the dictionary meaning of the words "cruel, inhuman or degrading." Conduct which fits any one of the adjectives is therefore hit by the prohibition. I however do not see any compelling reason to confine the conduct impugned to one adjective only. The deliberate infliction of pain with a cane on a tender part of the body as well as the institutionalised nature of the procedure involves an element of cruelty in the system that sanctions it. The activity is planned beforehand, it is deliberate. Whether the person administering the strokes has a cruel streak or not is beside the point. It could hardly be claimed, in a physical sense at least, that the act pains him more than his victim. The act is impersonal, executed by a stranger, in alien surroundings. The juvenile is, indeed, treated as an object and not as a human being. As pointed out in Jackson v Bishop:

"… irrespective of any precautionary conditions which may be imposed, [it] offends contemporary concepts of decency and human dignity and precepts of civilisation which we profess to possess…"

No compelling interest has been proved which can justify the practice. It has not been shown that there are no other punishments which are adequate to achieve the purposes for which it is imposed. Nor has it been shown to be a significantly effective deterrent. On the other hand, as observed by Page J in S v Motsoesoana, its effect is likely to be coarsening and degrading rather than rehabilitative. It is moreover also unnecessary. Many countries in the civilised world abolished it long ago; there are enough sentencing options in our justice system to conclude that whipping does not have to be resorted to. Thus, whether one looks at the adjectives disjunctively or regards the phrase as a "compendious expression of a norm", it is my view that at this time, so close to the dawn of the 21st century, juvenile whipping is cruel, it is inhuman and it is degrading. It cannot, moreover, be justified in terms of section 33(1) of the Constitution.