- 3 - infliction of corporal punishment by judicial and quasi-judicial organs in accordance with South African legislation introduced
into the country during the colonial rule, and even more so by the arbitrary extra-judicial infliction of corporal injuries as a
result of physical treatment meted out by the officials of the ruling administrative power and v/hich were in many cases of an extreme
nature, such as torture, inhuman and excessive beatings, left an indelible impression on the people of Namibia. It is not surprising
that a deep revulsion in respect of such treatment, including corporal punishment, has developed, which ultimately became articulated
in the Bill of Fundamental Human Rights enshrined in the Constitution, and in particular in Article 8 thereof, v/hich protects absolutely
the dignity of every person, even in the enforcement of a penalty legally imposed, and further absolutely prohibits torture or cruel,
inhuman or degrading treatment or punishment.
Furthermore the factors determining the basic social values and are never static. Apart from changing perceptions v/ithin our ov/n
community, and in particular in respect of corporal punishment, as well as the changing perceptions of other countries, particularly
on the African Continent, but also in the rest of the world, as evidenced in changing laws and global or regional instruments dealing
inter alia with such specific problems, are also influencing the thinking and result in changing perceptions and norms of our ov/n community.
I have made the above comments to make it clear that this Court
- 4 -v/ill have to arrive at a value judgment in the sense set out above in order to arrive at a decision, and that the making of
a value judgment is only possible by taking into consideration the historical background v/ith regard to social conditions and evolutions,
of the political impact on the perceptions of the people and a host of other factors, as well as the ultimate crystallisation of
the basic beliefs and aspirations of the people of Namibia in the provisions in the Bill of Fundamental Human Rights and Freedoms.
There is one further comment I wish to make. V/hilst very often there is little or no disagreement as regards the abolishment or corporal
punishment by judicial or quasi-judicial bodies, there is less agreement v/ith regard to the desirability or otherwise of the imposition
of corporal punishment, judicially or quasi-judicially ordered to be meted out to juveniles, that is on young persons under the age
of 21 years. Even less agreement exists in respect of the desirability or otherwise of corporal punishment in schools. It seems to
me that once cne has arrived at the conclusion that corporal punishment per se is impairing the dignity of the recipient or subjects him to degrading treatment or even to, cruel or inhuman treatment or punishment,
it does not on principle natter to what extent such corporal punishment is made subject to restrictions and limiting parameters,
even of a substantial kind - even if very moderately applied and subject to very strict controls, the fact remains that any type of corporal punishment results in some impairment of dignity and degrading treatment. The remarks made by Warren,
–
5 -
D.J. in Trop v Dulles, 356 U.S. 86, quoted by my brother, make this point very clear. Added to this is of course is the fact that whatever substantial
restrictions and controls are placed on the method of the imposition of corporal punishment or chastisement by law, the actual execution
thereof can never be fully controlled so that in practice despite such controlling provisions the application of such punishment
may nevertheless result in a brutal and excessive manner.
My brother Mahomed, A.J.A., has of course also dealt with these comments in his erudite judgment, but I believe that the above observation
may be helpful in understanding the conclusions all the members of this Court have arrived at.
H.J. BERKER, C.J.
CASE NO. SA 14 / 90
IN THE SUPREME COURT OF NAMIBIA
In the application of:
EX PARTE:
ATTORNEY GENERAL
IN RE:
CORPORAL PUNISHMENT BY ORGANS OF STATE
CORAM: BERKER, C.J.; MAHOMED, A.J.A.; TRENGOVE, A.J.A.
Delivered on: 1991/04/05
APPEAL JUDGMENT:
MAHOMED,
A.J.A. : During November 1990, the Attorney-General submitted a petition to the Chief Justice in terms of Section 15(2) of the Supreme
Court Act No. 15 of 1990, in which he sought the consent of the Chief Justice (or such other judge designated for that purpose by
the Chief Justice) for the Supreme Court to exercise its jurisdiction to act as a Court of first instance, in hearing and determining
a constitutional question which the Attorney-General sought to refer to the Supreme Court under the powers vested in him by Article
87(c) read with Article 79(2) of the Namibian Constitution.
The Chief Justice was of the opinion that the application was of a nature which justified the exercise of the Court's jurisdiction
to act as a- Court of first instance in hearing and determining the relevant constitutional question, which
- 2 -
was set out by the Attorney-General in the following terms:
"The Supreme Court is requested to determine whether the imposition and infliction . of corporal punishment by or on the authority
of any organ of state contemplated in legislation is -
1.
per se: or
2.
in respect of certain categories of persons; or
3.
in respect of certain crimes or offences or misbehaviours; or
4.
in respect of the procedure employed during the infliction thereof;
in conflict with any of the provisions of Chapter 3 of the Constitution of the Republic of Namibia and more in particular Article
8 thereof, and if so, deal with such laws as contemplated in Article 25(1) of the Namibian Constitution".
The Attorney-General engaged Counsel to assist the Court with argument both for and against the proposition that the infliction of
corporal punishment by or on the authority of any organ of the state contemplated in the relevant legislation and rules was unconstitutional.
The Court is indebted to Advocate Maritz and Adv. Desai who appeared before us, for their research and assistance.
The relevant provisions of the Constitution.
The Namibian Constitution seeks to articulate the aspirations and values "of the new Namibian nation following upon independence.
It expresses the commitment of the
- 3 -
Namibian people to the creation of a democratic society based on respect for human dignity, protection of liberty and the rule of
law. Practices and values which are inconsistent with or which might subvert this commitment are vigorously rejected.
For this reason colonialism as well as "the practice and ideology of apartheid from which the majority of the people of Namibia
have suffered for so long" are firmly repudiated.
Article 8 of the Constitution must therefore be read not in isolation but within the context of a fundamental humanistic constitutional
philosophy introduced in the preamble to and woven into the manifold structures of the Constitution.
Article 8 reads as follows:
"Respect for Human Dignity.
'(1) The dignity of all persons shall be inviolable.
(2)(a) in any judicial proceedings or in other proceedings before any organ of the State, and during the enforcement of a penalty,
respect for human dignity shall be guaranteed.
(b) No persons shall be subject to torture or to cruel, inhuman or degrading treatment or punishment' .
The statutory and other provisions sought to be impugned.
"The imposition and infliction of corporal punishment by or on the authority of any organ of state" in Namibia falls
- 4 -
into two classes. The first class consists of legislation permitting and regulating the imposition of corporal punishment by judicial,
quasi-judicial and administrative organs of the State. The second class deals with corporal punishment in schools.
(a) Corporal punishment by judicial, quasi-judical and administrative organs of the State:
There is a vast network of legislation falling within this category. The most important laws include the following: (My underlining)
Section 112 of the Criminal Procedure. Act, 1977 (Act, 1977 (Act No.51 of 1977)) which provide as follows:
?Where an accused at a summary trial in any court pleads guilty to the offence charged, or to an offence of which he may be convicted
on the charge and the Prosecutor accepts that plea -
(a)
the
meri
pres
Magi
that
puni
form
a f
exce
in
has
only
the pre opinio
t the
iding
strate the
shment of de
ine or
eding
respect
pleaded and -
siding
n tha
sente
Judge,
may,
of
of im
tentio
of R300,0 of guilt
Judge m t the o nee of
regiona if he is fence d prisonme n withou a whippi 0, conv the offe y on his
ay, if ffence
death 1 Magi
of th oes n nt or t the ng or ict th nee to
plea
he is of does not , or the strate or e opinion ot merit any other option of of a fine e accused which he of guilty
(i) impose any competent sentence, other than the sentence of death or imprisonment or any other form of detention without the option
of a fine or a whipping or a fine exceeding R300,00; or
(ii) deal with the accused otherwise in accordance with law;
(b) the presiding Judge shall, if he is of the opinion that the offence merits
- 5 -
the sentence of death, or the presiding Judge, regional Magistrate or Magistrate shall, if he is of the opinion that the offence merits
punishment of imprisonment or any other form of detention without the option of a fine or a whipping or a fine exceeding R300,0 or if requested thereto by the Prosecutor, question the accused with reference to the alleged facts of
the case in order to ascertain whether he admits the allegations in the charge to which he has pleaded guilty, and may, if satisfied
that the accused is guilty of the offence to which he had pleaded guilty, convict the accused on his plea of guilty of that offence
and impose any competent sentence: Provided that the sentence of death shall not be imposed unless the guilt of the accused has been
proved as if he had pleaded not guilty' .
Section follows:
276 of Act No.51 of 1977 which provides as
'(1)
Act
law,
pass
offe
(a)
(b)
(c)
(d)
(e)
(f)
(g) a whipping.'
Subject to the provisions of this and any other law and of the common
the following sentences may be ed upon a person convicted of an nee, namely -
Section follows
290(2) of Act No.51 of 1977 which provides as
'Any court which sentences a person under the age of 18 years to a fine or a whipping may, in addition to imposing such punishment, deal with him in terms of paragraph (a) (b), (c) or (d) of Subsection (1) '
Section follows
29:
of Act No.51 of 1977 which provides as
'(1) When a court may sentence a person
to a whipping, the whipping, may be
imposed in addition to or in
substitution -of any other punishment
to which such person may otherwise be
sentenced
- 6 -
5.
Except as provided in Section 294, a whipping by means of a cane only may be imposed and the number of strokes, which may not exceed seven, shall, subject to the provisions
of any other law, be in the discretion of the court which shall specify in the sentence the number of strokes imposed.
6.
Except where a whipping is imposed under Section 294, no person shall be sentenced to a whipping more than two times or within a period of 3 years of the last occasion on which he was sentenced to a whipping.
7.
Subject to the provisions of Section 29 4, the punishment of a whipping shall be inflicted in private in a prison and in accordance with the laws governing prisons.*
Section 293 of Act No.51 of 1977 which provides as follows:
'A whipping may be imposed only in the case of a conviction for -
(a)(i) robbery or rape or assault of an aggravated or indecent nature or with intent to do grievous bodily harm;
(ii) breaking or entering any premises with intent to commit an offence, whether under the common law or under any statutory provision,
theft of a motor vehicle (except where the accused obtained possession of the motor vehicle with the consent of the owner thereof)
or theft of goods from a motor vehicle or part thereof, where the said motor vehicle or the said part was properly locked;
(iii) receiving stolen property knowing it to be stolen property;
(iv) bestiality or an act of gross indecency committed by one male person with another;
8.
an attempt to commit any offence referred to in paragraph (a);
9.
culpable homicide; or
(d)
any statutory offence for which
a whipping may be imposed as a
punishment.'
Section 294 of Act No. 51 of 1977:
- 7 -
?(1) If a male person under the age of 21 years is convicted of any offence, whether such conviction is a first or a subsequent conviction,
the court convicting him may, in lieu of any other punishment, sentence him to receive in private a moderate correction of a whipping not exceeding seven strokes, which shall be administered by
such person and in such place and with such instrument as the court may determine*
(2)
The whipping shall be inflicted over
the buttocks, which shall not be exposed
during the infliction but shall be
covered with normal attire.
(3)
A parent or, as the case may be, a
guardian of the person concerned may be
present when the whipping is inflicted,
and the court shall advise such parent
or guardian, if present at the court
proceedings when
the whipping is
| imposed |
of his right |
to |
be |
present at |
| the (4) |
infliction. A whipDing under this |
section shall |
| not |
be |
inflicted unless |
a |
District |
| Surqeon |
or an assistant |
District Surgeon |
|
has examined the person concerned Trnd has certified that he is in a fit state of health to undergo the whipping.
(5) If a District Surgeon or assistant District Surgeon certifies that the person concerned is not in a fit state to receive the whipping or any part thereof, the person appointed by the court to execute the sentence shall forthwith submit a certificate to the court which passed the sentence
or to a court having like jurisdiction, and such court may thereupon, if satisfied that the person concerned is not in a fit state
to receive the whipping or any part thereof, amend the sentence as it deems fit' .
Section 295 of Act No.51 of 1977 which provides as
follows:
*(1) No female and no person of or over the age of 30 years shall be sentenced by any court to the punishment of a whipping.
(2) A whipping shall not be imposed by any court if it is proved that the existence of some psychoneurotic or
psychopathic
condition contributed
towards the commission of the offence.'
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