Page:S v Williams and Others.djvu/7

Rh 7 equal protection of the law." Section 8(2) prohibits unfair discrimination on grounds which include race, gender, sex, colour, and age; according to section 8(4), "[p]rima facie proof of discrimination on any of the grounds specified … shall be presumed to be sufficient proof of unfair discrimination … until the contrary is established." Applicants argued that the provisions of section 294 of the Act discriminated unfairly against male juveniles on grounds of age and sex and, in the context of South Africa's unjust and unequal past, their application was susceptible to racial bias.

Section 10, for its part, guarantees to every person "the right to respect for and protection of his or her dignity." The proposition advanced was that the circumstances under which juvenile whipping is administered, including the fact that it involves the intentional infliction of physical pain on the juvenile by a stranger at the instance of the State, are incompatible with respect for and the protection of the dignity of the person being punished. It was contended that this was a violation of the dignity of both the minor as well as that of the person administering the whipping.

The provisions of section 30 of the Constitution are designed to protect children. It was argued that inasmuch as the Constitution recognises the vulnerability of children as a group and sets out to protect them, juvenile whipping infringed their right to security and not to be subjected to abuse.

Much of applicants' argument was, understandably enough, devoted to the alleged violation of section 11(2) of the Constitution. As the heading indicates, this section deals with "[f]reedom and security of the person" and the subsection provides that "[n]o person shall be subject to torture of any kind, whether physical, mental or emotional, nor shall any person be subject to cruel, inhuman or degrading treatment or punishment." This is the only provision, among those relied upon by the applicants, that expressly refers to punishment. I propose to deal with the impact, if any, of sections 10 and 11(2) of the Constitution on the conduct which is prescribed by section 294 of the Act.

It is clear that when the words of section 11(2) of the Constitution are read disjunctively,