South Africa 1994 and 2000 Constitutional Court judgments
Condemnation of judicial corporal punishment of juveniles – The State v Williams et al, case no. CCT/20/94
The Constitutional Court considered together five cases in which six juveniles were sentenced to receive a “moderate correction” of a number of strokes with a cane. It set out to examine whether sentencing of juveniles to whipping under the Criminal Procedure Act was consistent with the Constitution. In doing so, the Court noted that “courts do have a role to play in the promotion and development of a new culture ‘founded on the recognition of human rights,’ in particular with regard to those rights which are enshrined in the Constitution”. Furthermore, “one of the implications of the new order is that old rules and practices can no longer be taken for granted; they must be subjected to constant re-assessment to bring them into line with the provisions of the Constitution” (para. 8).
The Court noted that consensus had been reached that legal provisions allowing corporal punishment of adults are inconsistent with the Constitution, but that such consensus had not been reached in relation to juvenile whipping. The judgment goes on to examine the legality of whipping of juveniles in relation to the Constitutional provisions on the right to respect for dignity (article 10) and the prohibition of cruel, inhuman or degrading treatment or punishment (article 11), including with reference to similar protections in international human rights law and in national legislation in other countries. It notes the clear trend against judicial whipping and its abolition in a range of other countries, and goes on to state (paras. 51, 52 and 53):
In interpreting section 11(2) of the Constitution, however, we should not only have regard to the position in other jurisdictions. This Court has held that in interpreting the rights enshrined in Chapter 3 of the Constitution, a purposive approach should be adopted. In seeking the purpose of the particular rights, it is important to place them in the context of South African society. It is regrettable, but undeniable, that since the middle 1980's our society has been subjected to an unprecedented wave of violence. Disputes, whether political, industrial or personal, often end in violent assaults. In addition, during the same period, there has been a marked increase in violent crimes, such as armed robbery and murder.
The process of political negotiations which resulted in the Constitution were a rejection of violence. In this context, it cannot be doubted that the institutionalised use of violence by the State on juvenile offenders as authorised by section 294 of the [Criminal Procedure] Act is a cruel, inhuman and degrading punishment. The Government has a particular responsibility to sustain and promote the values of the Constitution. If it is not exacting in its acknowledgement of those values, the Constitution will be weakened. A culture of authority which legitimates the use of violence is inconsistent with the values for which the Constitution stands.”
Having confirmed that juvenile whipping is a violation of the Constitutional rights in articles 10 and 11, the Court then considers whether such violation was a justifiable limitation of those rights as would be permitted under article 33 of the Constitution. The judgment concludes on this issue (para. 91):
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, … 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.”
The Court declared the provisions on juvenile whipping in the Criminal Procedure Act to be unconstitutional and invalid and ordered that no sentences of whipping imposed be carried out.
Condemnation of school corporal punishment – Christian Education South Africa v Minister of Education, Constitutional Court CCT4/00
In 2000, the Constitutional Court considered the question of whether the enactment of legislation prohibiting corporal punishment in schools violated the rights of parents of children in independent schools who, in line with their religious convictions, had consented to its use. The voluntary organisation, Christian Education South Africa, argued that “corporal correction” is an integral part of the Christian ethos that it sought to maintain in its schools and that the prohibition of corporal punishment breached their individual, parental and community rights to freely practise their religion.
The Court considered in detail the right of the individual to freedom of religion, belief and opinion in article 15 of the Constitution and the right protection for communities united by a shared religion in article 31, and whether the prohibition of corporal punishment in education law is a reasonable and justifiable limitation of the parents’ rights under these articles. The judgment stated that “while they may no longer authorise teachers to apply corporal punishment in their name pursuant to their beliefs, parents are not being deprived by the Schools Act of their general right and capacity to bring up their children according to their Christian beliefs” (para. 38). It went on (para. 41):
Courts throughout the world have shown special solicitude for protecting children from what they have regarded as the potentially injurious consequences of their parents’ religious practices. It is now widely accepted that in every matter concerning the child, the child’s best interests must be of paramount importance. This Court has recently reaffirmed the significance of this right which every child has.The principle is not excluded in cases where the religious rights of the parent are involved….”
The court considered the reasons for imposing a blanket prohibition on corporal punishment in schools (para. 50):
… In order to put the child at the centre of the school and to protect the learner from physical and emotional abuse, the legislature prescribed a blanket ban on corporal punishment. In its judgement, which was directly influenced by its constitutional obligations, general prohibition rather than supervised regulation of the practice was required. The ban was part of a comprehensive process of eliminating state-sanctioned use of physical force as a method of punishment.The outlawing of physical punishment in the school accordingly represented more than a pragmatic attempt to deal with disciplinary problems in a new way. It had a principled and symbolic function, manifestly intended to promote respect for the dignity and physical and emotional integrity of all children.”
It concluded that it was reasonable and justifiable that the prohibition stands in all schools, including those with a Christian ethos, and dismissed the application for exemption from the prohibition (para. 51):
I do not wish to be understood as underestimating in any way the very special meaning that corporal correction in school has for the self-definition and ethos of the religious community in question. Yet their schools of necessity function in the public domain so as to prepare their learners for life in the broader society. Just as it is not unduly burdensome to oblige them to accommodate themselves as schools to secular norms regarding health and safety, payment of rates and taxes, planning permissions and fair labour practices, and just as they are obliged to respect national examination standards, so it is not unreasonable to expect them to make suitable adaptations to non-discriminatory laws that impact on their codes of discipline. The parents are not being obliged to make an absolute and strenuous choice between obeying a law of the land or following their conscience. They can do both simultaneously. What they are prevented from doing is to authorise teachers, acting in their name and on school premises, to fulfil what they regard as their conscientious and biblically-ordained responsibilities for the guidance of their children. Similarly, save for this one aspect, the appellant’s schools are not prevented from maintaining their specific Christian ethos.”
Subsequent law reform
Following the 1995 Constitutional Court ruling on judicial corporal punishment, South Africa enacted the Abolition of Corporal Punishment Act 1997 which outlawed whipping as a sentence for crime; the Correctional Services Second Amendment Act 1996 abolished corporal punishment in prisons in respect of debtors, and the South African Schools Act 1996 abolished corporal punishment in schools and the prohibition was also included in the National Education Policy Act 1996. More recently, the Child Justice Act 2008 makes no provision for corporal punishment, the prohibition in schools is reiterated in the Further Education and Training Colleges Act 2006, and Regulations under the Children’s Act 2005 prohibit corporal punishment in foster care and child and youth centres. The Government is committed to prohibiting corporal punishment by parents and draft amendments to the Children Act that would achieve this are under discussion.