Court name
Supreme Court
Case number
SA 14 of 1990
Case name
Ex parte: Attorney-General In Re: Corporal Punishment by Organs of State
Media neutral citation
[1991] NASC 2













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: 5 April 1991



APPEAL JUDGMENT



BERKER, C. J. : I have read the judgment
prepared by my brother Mahomed, A.J.A, in this matter, and fully
agree v/ith the conclusions arrived at by him.



There are only a few general comments I should like to
make in addition thereto. Whilst it is extremely instructive and
useful to refer to, and analyze, decisions by other Courts such as
the International Court of Human Rights, or the Supreme Court of
Zimbabv/e or the United States of America on the question whether
corporal punishment is impairing the dignity of a person subjected to
such punishment, or whether such punishment amounts to cruel, inhuman
or degrading treatment, the one major and basic consideration in
arriving at- a decision involves an enquiry into the generally held
norms, approaches, moral standards,



- 2 -aspirations and a host of other established
beliefs, of the people of Namibia.



In other words, the decision which this Court will have
to make in the present case is based on a value judgment, which
cannot be primarily be determined by legal rules and precedents, as
helpful as they may be, but must take full cognisance of the social
conditions, experiences and perceptions of the people of this
country. This is all the more so as with the advent and emergence of
an independent sovereign Namibia, freed from the social values,
ideologies, perceptions and political and general beliefs held by the
former colonial power, which imposed them on the Namibian people, the
Naiuibian people are now in the position to determine their own
values free from such imposed foreign values by its former colonial
rulers.



Added to this is the fact that in the case of Namibia
the former colonial rulers, namely the Government of the Republic of
South Africa, during their administration of our country embraced
certain ideologies, values, and social conventions which v/ere
totally unacceptable to the Namibian people, and indeed to the rest
of the world. It is therefore inevitable that on independence these
ideologies, values and conventions would be discarded by the people
and the Government of a free and independent Namibia, in the light of
their experiences under the colonial rule.



These experiences generally, but in particular with
regard to



- 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 -




  1. 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
    .



  2. 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.



  3. 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;




  1. an attempt to commit any offence referred to in
    paragraph (a);



  2. 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.'



- 8 -



Section 302(1)(a)(iii) which provides as follows:



'(l)(a) any sentence imposed by a Magistrate's Court -



(i) ...


(ii)
...



(iii) which consists of a whipping, other
than a whipping imposed under section 294,



shall be subject in the ordinary course to review by
judge of the Provincial Division having jurisdiction.'



Section 308 of Act No.51 of 1977 which provides as
follows:



1 (1) A whipping, other than a whipping imposed under
Section 294
, shall in no case be inflicted until the
relevant proceedings have been returned with the certificate referred
to in Section 304(1) or the Provincial Division in question has
confirmed the sentence..



(2) If a person sentenced to receive a whipping
is not also sentenced to imprisonment for such a period as shall
allow time for the judge's certificate to be received before the
whipping is



inflicted, such person, if he has not been
released on bail, shall be detained in custody until either the
record of the proceedings in the case has been returned as aforesaid
or the sentence has been confirmed as aforesaid.'



Section 309(4) which provides as follows:





When an appeal under this section noted, the
provisions of




'(1) is




  1. ...



  2. Sections 307 and 308 shall mutatis mutandis
    apply with reference to the sentence appealed against,including
    a sentence of a whipping imposed under Section 294
    .'




Section 321 of Act No.51 of 1977 which provides as
follows:



'(1) The execution of the sentence of a superior court
shall not be suspended by reason of any appeal against a conviction
or by reason of any question of law having been reserved for
consideration by the court of appeal unless -













- 9 -




  1. the accused is sentenced to death or to whipping
    in which case the sentence shall not be executed until the appeal or
    question reserved has been heard and decided; or



  2. ...'




Section 92 of the Magistrates' Courts Act, 1944 (Act
No.32 of 1944) which provides as follows:



'(1) Save as otherwise in this Act or in any other law
specially provided, the court, whenever it may punish a person for an
offence -



  1. ...



  2. ...



  3. by whipping, may impose a senten­ce of
    whipping with a cane only
    .'




Section 36 of the Prison's Act, 1959 (Act No. 8 of
1959) which provides as follows:



'(1) Corporal punishment shall not be inflicted
before the medical officer has examined the prisoner and has
certified that he is in a fit state of health to undergo such
punishment.'



(2) If it appears to the medical officer
that the
prisoner is not in a fit state
of health to undergo corporal
punishment
,
he shall certify that fact in writing.



(3) After the prisoner has been
certified by the
medical officer to be



fit for corporal punishment, the



punishment shall be inflicted in private in a
prison in the presence of the medical officer.



(4) The medical officer shall immediately
stop the
infliction of any further punish­
ment if it appears to him
during the
infliction of the corporal punishment
that
the
prisoner is not in a fit state of
health to undergo the remainder
thereof,
and shall certify that fact in writing.



(5) Whenever under the provisions of Sub­section
(2) or (4) any medical officer has certified that any person
sentenced to undergo corporal punishment is not in a fit
state of"health to undergo the whole or the remainder thereof,
the certificate shall immediately be transmitted to the
Commissioner and, if urgently necessary,



- 10 -



the fact shall be reported to him by telegraph.



(6) (a) Upon the receipt of any such
certificate by
telegraphic advice, the
Commissioner shall report the matter
to
the court which passed the sentence or,
in the case of a
superior court, if that
court is not sitting, to the
Provincial
Division of the Supreme Court concerned,
and such
court or Provincial Division
may, subject to the provisions of
any
relevant law, either remit the sentence
of corporal
punishment
or substitute
another penalty in lieu of the
sentence
of corporal punishment
.



(b) If no remission or substitution as aforesaid is made
by the court or Provincial Division, the President may remit the
whole or the remainder of the corporal punishment, as the case
may be.



(7) Where corporal punishment has been
ordered

in more than one sentence passed
at or at approximately the same
time on
the same person, that punishment shall
not be
inflicted at intervals, but shall
be inflicted at one and the same
time as
early as possisble after the sentences
were passed
,
subject to the provisions
of this section and of any law
relating
to the review of such sentences by a
judge.



(8) The number of strokes inflicted at


one
and the same time in terms of








































Subsection



(7)



shall



in



no



instance



exceed



ten



and



the



remai



nder



of



the



strokes



, if



any



, ord



ered



in



the



said



sentences
shall lapse.
"



Section 37 of Act No.8 of 1959 which provides as
follows:



"No women prisoner shall under any
circumstances be subjected to corporal punishment."



Section 48(1) of Act No. 8 of 1959 which provides
as follows:



"Any prisoner who -



(a) escapes or conspires with any person to procure the
escape of any prisoner, or who assists or incites any other prisoner
to escape from the prison in which he is placed, or from any post or
place where of wherein he may be for the purpose of labour or



- 11 -



detention, or from hospital or while in the course of
removal in custody from one place to another; or



(b) makes any attempt to escape from
custody; or



(c) is in possession of any instrument
or other
thing with intent to procure
his own escape or that of
another
prisoner,



shall be guilty of an offence and liable on conviction
to imprisonment for a period not exceeding 5 years, and, in addition,
where the escape or attempt to escape was accompanied by an act of
violence, such prisoner may be



sentenced to undergo corporal



punishment not exceeding 7 strokes."



Section 54(2) of Act No.8 of 1959 which provides
as follows:



"Upon conviction of any prisoner in respect of any
such contravention or non-compliance, such commissioned officer shall
have jurisdiction to impose any one or more of the following
punishments:




  1. ...



  2. ...



  3. ...



  4. corporal punishment, not exceed­ing six strokes,
    if the prisoner is a convicted male prisoner apparently under the
    age of 40 years and no other punishment is imposed upon him in
    respect of the same contra­vention or non-compliance."




Section 56(3) of Act No. 8 of 1959 which
provides as follows:



"No sentence, other than a sentence imposing
corporal punishment
, shall be suspended pending the decision of
the said Judge."



Regulation 100 of the Prison's Regulations which
provides as follows:



"(1) Subject to the provisions of Sections 36, 37
and 56 of the Act, Sections 302, 308, 309, 316 and



- 12 -



321(1)(a) of the Criminal Procedure Act, 1977 (Act
No.51 of 1977), and the directions which may be prescribed, corporal
punishment
shall not be inflicted -




  1. before the period within which an appeal in terms of
    the relative provisions of the Criminal Procedure Act, 1977, may be
    noted, has expired and written notification has been received that
    an appeal has not been noted, unless the convicted person has
    indicated in writing that he has no intention of noting an appeal,
    and he agrees that corporal punishment may be inflicted
    before the expiry of the said period;



  2. where an appeal has been noted against the sentence
    whereby such corporal punishment was imposed, before written
    notification had been received that the sentence has been confirmed;



  3. where the sentence whereby .such corporal
    punishment was imposed
    is subject to review, before
    written notification had been received that this sentence has
    been confirmed;



  4. where a reguest, as contemplated in Section 316 of
    the Criminal Procedure Act, 1977, has been made, before written
    notification had been received either that such a reguest has been
    refused or that the sentence whereby such corporal




punishment was imposed has been



confirmed.




  1. A member of the Prison Service shall be present at
    the infliction of corporal punishment
    and shall endorse the date
    thereof on the relevant warrant, carry out such instructions as the
    medical officer may issue in order to prevent injury to health, and
    comply with further directions as may be specially or generally
    prescribed in regard to the infliction of corporal punishment.



  2. Corporal punishment shall be inflic­ted across
    the buttocks with a cane in the manner prescribed
    .



  3. A cane used to inflict corporal punishment - -




(a) on an adult prisoner shall be approxi­mate
125 centimetres in length and 12



- 13 -



millimetres in diameter;



(b) on a juvenile prisoner shall be approximate 1
meter in length and 9 millimetres in diameter
."



Section 32 of the Children's Act, 1960 (Act No.33 of
1960) which provides as follows:



"Any person who fails to comply with a requirement
referred to in subsection (4) of Section 31, with which it is his
duty to comply, shall be guilty of an offence and liable on
conviction -



(a) if the person convicted is the child
concerned, to -



(i) ...



(ii) ...



(iii) a moderate whipping as provided in Section
345 of the Criminal Act, 1955 (Act No.56 of 1955);



(b) ... "



Section 92(1) of the Children's Act, 1960 (Act No.33
of 1960) which provides as follows:



"The Minister may make regulations -



(a) ...




  1. as to the organisation and maintenance of places of
    safety, places of detention and observation centres established or
    approved in terms of Section 38, the care, control and bringing-up
    of children in those places and centres, and the maintenance there
    of discipline, inter alia also by the infliction of corporal
    punishment
    ;



  2. as to the organisation and maintenance of schools of
    industries and reform schools and of children's homes established
    under subsection (3) of Section 39, the constitution of their Boards
    of Management, the appointment, resignation and discharge of members
    of such Boards, the powers and duties of such Boards, and the manner
    in which they shall function and the care, control, bringing-up and
    training of pupils in institutions, the maintenance there of
    discipline, inter alia also by the infliction of corporal
    punishment
    and the manner in which persons who have




- 14 -



absconded or are deemed to have absconded from any
institution are to be dealt with;



(d) - (o) ... "



Section 1 of the Criminal Law Amendment Act, 1953 (Act
No 8 of 1953) which provides as follows:



"Whenever any person is convicted of an offence
which is proved to have been committed by way of protest or in
support of any campaign against any law or in support of any campaign
for the repeal or modification of any law or the variation or
limitation of the application or administration of any law, the court
convicting him may, notwithstanding anything to the contrary in any
other law contained, sentence him to




  1. ...



  2. ...




(c) a whipping not exceeding ten stro­
kes

; or



(d) ...




  1. both such fine and such a whip­ping; or



  2. both such imprisonment and such a whipping."



Section
2 of Act No.8 of 1952 which provides as follows:



"Any person who -




  1. in any manner whatsoever advises, encourages,
    incites, commands, aids or procures any other person or persons in
    general; or



  2. uses any language or does any act or thing calculated
    to cause any person or persons in general,




to commit an offence by way of protest against a law
or in support of any campaign aqainst any law, or in support of any
campaign for the repeal of modification of any law or the variation
or limitation of the application or administration of any law, shall
be guilty of an offence and liable upon conviction to -



(i)



- 15 -



(ii)



(iii) a whipping not exceeding ten strokes; or



(iv) ...



(v) both such fine and such a


whipping;
or



(vi) both such imprisonment and a whipping:



Provided that in the case of a second conviction, it
shall not be competent to impose a fine except in conjunction with
a whipping
or imprisonment."



Section 2(1) of the Animals Protection Act, 1962
(Act No. 71 of 1962) which provides as follows:



"Any person who -



(a) -



(b)(Description of acts relating to cruelty to animals)



shall, subject to the provisions of this Act and any
other law, be guilty of an offence and liable on conviction to a fine
not exceeding R200,00 or in default of payment to imprisonment for a
period not exceeding six months or to such imprisonment without the
option of a fine, or, where any such act or omission is of a wilful
and aggravated nature, to a whipping not exceeding six strokes or
to both such a fine and such a whipping or to both such imprisonment
without the option of a fine and such a whipping
."



Section 3(2) of Proclamation R348 of 1967 which
provides as follows:



"The procedure at any trial under this section, the
punishment, the manner of execution of any sentence imposed and the
appropriation of fines shall be in accordance with native law and
custom observed by the tribe or in the location or native reserve
concerned: Provided that a Chief, Headman, Chief's deputy or
Headman's deputy man not inflict any punishment involving death,
mutilation,, grievous bodily harm or imprisonment or impose a fine in
excess of R40,00 or two head of large stock or ten head of small
stock: Provided



- 16 -



further that nothing in this subsection contained
shall be construed as prohibi­ting corporal punishment being
imposed in the case of unmarried males below the apparent age of 30
years
".



Section 4(2) of Proclamation R348 of 1967 which
provides as follows:



"The jurisdiction of any person or body referred to
in Subsection (1) as to persons, causes of action or offences, the
procedure at any trial by such person or body, the punishment, the
manner of execution of any judgment or sentence and the appropriation
of fines shall be in accordance with the native law and custom
observed in the area in question: Provided that no punishment
involving death, mutilation or grievous bodily harm may be imposed:
Provided further that nothing in this subsection



contained shall be construed as



prohibiting corporal punishment being imposed in
accordance with the said native law and custom
."



(b) The authority for imposing corporal punishment
in
schools.



It was common cause before us that corporal punishment
is permitted in schools administered by the Ministry of Education,
Culture and Sport in Namibia. There is indeed a Code which regulates
such punishment, which has been issued by this Ministry.



The material provisions of this Code provide that -



(i) The head of the school has the exclusive
responsibility for the administration of corporal punishment;



(ii) if circumstances so demand the head of the school
may extend this responsibility to the deputy and departmental heads.



(iii) The administration of corporal punishment by a
teacher may only take place in the presence of and with the approval
of the head of the school;



- 17 -



(iv) No corporal punishment may be adminis­tered
upon females.



(v) Corporal punishment may only be imposed in respect
of serious contraventions of which the following are examples:



Bullying; continuous and serious failure to perform
duties; swearing; indecency; abusive language; unbecoming conduct;
truancy; insubordination; deliberate damage to property; assault.



(vi) Corporal punishment must be adminis­tered
moderately so that it does not cause permanent bodily injury or give
rise thereto.



(vii) The age and bodily condition of the stu­dent
must be taken into account.



(viii) Before any corporal punishment or any other
punishment is administered the're must be a proper investigation of
the contravention which the student is alle­ged to be guilty of.



(ix) No corporal punishment may be imposed in the
presence of other students.



(x) Only an ordinary cane may be used in the
administration of corporal punishment.



This cane may not be longer than 75 centimetres and
thicker than 13 milli­metres .



(xi) The cane used for the administration of corporal
punishment may not be in the possession of a teacher in the
classroom..



(xii) Corporal punishment may not be imposed on the
hands or the legs or any other part of the anatomy except for the
but­tocks .



(xiii) Pulling the hair or ears of the student or
smacking or pinching or knocking him or assaulting him in any other
way is strictly prohibited.



(xiv) A full written record of the imposition of the
corporal punishment in all cases must be maintained in a punishment
regis­ter which must show the name of the student, his age, the
number of strokes imposed, the name of the person who administered
the punishment, the date on which the punishment was administered and
a full description of the contravention.



- 18 -




Clearly the Code sought to temper the administration
of corporal punishment but there is nothing in the Code which
limits the number of strokes which may be imposed for particular
contraventions; many of the substantive contraventions themselves
are defined very widely and are inherently vague and protean; and
the intensity of the punishment would vary with the personality and
strength of the punisher, as well as the resilience or vulnerability
of the person sought to be punished.



The application of Article 8 of the Constitution:



In terms of Article 8(2)(b) of the Constitution:



"No persons shall be subject to torture or to
cruel, inhuman or degrading treatment or punishment
". (My
underlining)



to
be read to protect




It seems clear that the words underlined have
disjunctively. Thus read, the section seeks citizens from seven
different conditions:




  1. torture;



  2. cruel treatment;



  3. cruel punishment;



  4. inhuman treatment;



  5. inhuman punishment;











- 19 -




  1. degrading treatment;



  2. degrading punishment.




Although the Namibian Constitution expressly directs
itself to permissible derogations from the Fundamental Rights and
Freedoms entrenched in Chapter 3 of the Constitution, no derogation
from the rights entrenched by Article 8 is permitted. This is clear
from Article 24(3) of the Constitution. The State's obligation is
absolute and unqualified. All that is therefore required to establish
a violation of Article 8 is a finding that the particular statute or
practice authorised or regulated by a state organ falls within one or
other of the seven permutations of Article ' 8(2)(b) set out above;
"no questions of justification can ever arise" (Sieghart:
"The International Law of Human Rights", page 161
paragraph 14.3.3.)



It accordingly follows that even if the moderation
counselled or comtemplated in some of the impugned legislation or
practice succeeds in avoiding "torture" or "cruel"
treatment or punishment, it would still be unlawful if what it
authorises is "inhuman" treatment or punishment or
"degrading" treatment or punishment.



What is the meaning of the words "inhuman" and
"degrading"?. According to the Oxford English Dictionary
"inhuman" means "destitute of natural kindness or
pity; brutal, unfeeling, cruel; savage, barbarous". "To
degrade" means "to lower in estimation, to bring into
dishonour or contempt; to lower in character or quality; to debase".
(.S



- 20 -



v Ncube ; S v Tshuma; S v Ndhlovu.
1988(2) SA 702 (ZSC) at 717(D - E) See also S v Chabalala,
1986(3) SA 623 (B AD) at 626 (I) to 627 (B); Sieghart (supra) pages
162 tot 172; S v Petrus and Another, (1985) LRC (Const.) 699
at 714 g.



The question as to whether a particular form of
punishment authorised by the law can properly be said to be inhuman
or degrading involves the exercise of a value judgment by the Court.
(S v Ncube and Others, (supra) at 717 (I).



It is however a value judgment which requires
objectively to be articulated and identified, regard being had to
the contemporary norms, aspirations, expectations and sensitivities
of the Namibian people as expressed in its national institutions and
its Constitution and further having regard to the emerging consensus
of values in the civilised international community (of which Namibia
is a part) which Namibians share. This is not a static exercise. It
is a continually evolving dynamic. What may have been acceptable as a
just form of punishment some decades ago, may appear to be manifestly
inhuman or degrading today. Yesterday's orthodoxy might appear to be
today's heresy.



The provisions of Article 8(2) of the Constitution are
not peculiar to Namibia; they articulate a temper throughout the
civilised world which has manifested itsolf consciously since the
Second World War. Exactly the same or similar articles are to be
found in other instruments (See for example Article 3 of . the
European Convention for the



- 21 -



Protection of Human Rights and Fundamental Freedoms;
Article 1(1) of the German Constitution; Article 7 of the
Constitution of Botswana; Article 15(1) of the Zimbabwean
Constitution.)



In the interpretation of such articles there is strong
support for the view that the imposition of corporal punishment on
adults by organs of the State is indeed degrading or inhuman and
inconsistent with civilised values pertaining to the administration
or justice and the punishment of offenders. This view is based
substantially on the following considerations:




  1. Every human being has an inviolable dignity. A
    physical assault on him sanctified by the power and the authority
    of the State violates that dignity. His status as a human being is
    invaded.



  2. The manner in which the corporal punishment is
    administered is attended by, and intended to be attended by, acute
    pain and physical suffering "which strips the recipient of all
    dignity and self-respect". It "is contrary to the
    traditional humanity practised by almost the whole of the civilised
    world, being incompatible with the evolving stan­dards of
    decency". (S v Ncube and Others, (supra) at page 722 (B
    to C)).




- 22 -




  1. The fact that these assaults on a human being, are
    systematically planned, prescribed and executed by an organised
    society makes it inherently objectionable. It reduces organised
    society to the level of the offen­der. It demeans the society
    which permits it as much as the citizen who receives it.



  2. It is in part at least premised on
    irrationality, retribution and insensitivity. It makes no appeal to
    the emotional sensitivity and the rational capacity of the person
    sought to be punished.








  1. It is inherently arbitrary and capable of abuse
    leaving as it does the intensity and the quality of the
    punishment, substantially subject to the temperament, the
    personality and the idiosyncrasies of the particular
    executioner of that punishment.



  2. It is alien and humiliating when it is in­ flicted
    as it usually is by a person who is a relative stranger to the
    person punished and who has no emotional bonds with him.




There is an impressive judicial consensus concerning
most of these general objections. (S v Ncube & Others,
(supra) at page 722 A to E; Tyrer v United Kingdom (1978) 2
EHRR, 1 (paragraph 32 and 33 of the judgment;) S v Petrus
and



- 23 -



Another ,(supra); S v A Juvenile. 1990(4)
SA 151 (ZSC); s y Kumalo and Other, 1965(4) SA 565 (N) at 574;
S v Masondo and Another, 1969(1) PH, H58 (N) ; S v
Motsoesoana
, 1986(3) SA 350 (N) at 352D to 354E and 358D to F; S
v Ruiters and Others
, 1975(3) SA 526 (C) at 530 531.



In the result there is beginning to emerge an
accelerating consensus against corporal punishment for adults
throughout the civilized world. Thus -



(i) In Europe, Article 3 of the European Conven­
tion for the Protection of Human Rights and Fundamental Freedoms
which is in the same terms as Article 8(2)(b) of the Namibian
Constitution was interpreted in the case of Tyrer, (supra) to
render unconstitutional an order by a Juvenile Court in the Isle of
Man, sentencing the applicant "to three strokes of the birch".
(See paragraph 35 of the judgment.)



(ii) In the United Kingdom, Section 36 of the
Criminal Justice Administration Act of 1914 abolished whipping for
all common law offen­ces and Section 1 of the Criminal Justice
Act of 1948 abolished whipping as a sentence by a court of law
altogether pursuant to the Report of the Departmental Committee on
Corporal Punishment. ("The Cadogan Committee").



- 24 -



The United Kingdom does not have a domestic statute
incorporating a provision equivalent to Article 8(2) of the Namibian
Constitution but it respects the findings of the European Court on
Human Rights.



(iii) In Germany, Article 1(1) of the German
Constitution provides as follows:



"Die Wiirde des Menschen ist unantastbar. Sie zu
achten und zu schutzen ist Verpflictitung aller staatlichen
Gewalt."



Section 2(2) of the German Constitution further
provides that -



"Jeder hat das Recht auf Leben und kor- perliche
Unversehrtheit. Die Freiheit der Person is unverletzlich. In diese
Rechte darf nur auf Grund eines Gesetzes eingegriffen werden".



Corporal punishment imposed by judicial authorities is
regarded as unconstitutional in the light of these provisions of the
German Constitution. (Ingo von Munch "Grundges^tz-Kommentar"
(3rd edition), vol.p.90.)



(iv) In the United States the relevant constitutional.
provision is the 8th Amendment which provides that -



- 25 -



"Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments
inflicted".



The question is to whether or not a particular statute
prescribing penalties violates the 8th Amendment is essentially
dependent on an analysis of .the relevant statute. (Corpus Juris
Secundum, volume 16 C, par.1082.) Apparently only the state of
Delaware still retains the whipping post for crimes or offences
committed.



(v) Section 7(1) of the Botswana Constitution is
substantially in the same terms as Article 8 (2) of the Namibian
Constitution, but Section 7(2) of the Constitution of Botswana
saves from attack under Section 7(1) of the Consti­tution any
punishment authorised by a law which preceded the independence of
Botswana.



For this reason the Botswana Court of Appeal, in the
case of the S v Petrus and Another, was not invited to set
aside the provisions of the previous legislation preceding the
independence of Botswana permitting corporal punishment, but it was
invited to hold and did hold that an amendment subsequent to the
commencement of the Constitution which provided for strokes in
instalments was ultra vires Section 7(1) of the Botswana
Constitution.



- 26 -



In the course of the judgments given in that case the
disapproval of corporal punishment by the members of the Court was
however repeatedly manifest.



(vi) Section 15(1) of the Constitution of Zimbab­we
is exactly in the same terms as Article 8(2)(b) of the Namibian
Constitution.



The Supreme Court of Zimbabwe has unanimously held that
corporate punishment for adults "which in its very nature is
both inhuman and degrading" violates the constitutional
guaran­tee against inhuman or degrading punishment or treatment.
(S v Ncube, (supra).



(vii) In Canada corporal punishment was abolished
with the enactment of the Criminal Law Amend­ment Act of 1972 and
in Australia corporal punishment is no longer resorted to.
(See N'cube' s case (supra) at pages 710 to 713 and
especially 713A containing a trenchant criti­cism of corporal
punishment which is said to .brutalise "the prisoner and
execution­er alike. It breeds hatred and bitterness, uproots
personal dignity, and frustrates any attempt at social re-adjustment.
At the same time it arouses among fellow prisoners a community
of interests against the prison regime and a sympathy with its
victims."



} 1^



.. - 27 -



(viii) South Africa has never had a Constitutional
provision which entitles the Court to strike down legislation of the
Central Parliament.. Some of the strongest and most eloquent •
criticisms of corporal punishment have how-• ever come from the
judiciary in that country in the course of interpreting and applying
the manifold statutes which authorise and regulate corporal
punishment in the Republic of South Africa.



In S v Basson and Another, (supra) Leon, J.
stated that -



"Whipping is not only an assault upon the •
person of a human being but also upon his dignity as such".



In S v Hyute & Others; S v Baby,
1985 (2) SA 61 (Ck) at



68H-I, De Wet, C.J. stated:



"That the imposition of strokes is a very severe
and humiliating form of punishment".



In S v Machwili, 1986(1) SA 156 (N), Didcott, J.
expressed



the view that -



"When an adult is flogged on the other hand,
especially when he is flogged not in lieu of but in addition to being
sent to gaol, nothing is achieved but revenge. Such is gained at a
cost, what is more. Society's standards suffer. It stoops to the
level of the criminal whom it punishes. It behaves with the same sort
of barbarism as that which it condemned in him."



In S v Motsoesoana, (supra), Milne, J.P.(as
he then was) described corporal punishment as "a brutal
and degrading form of. punishment" (at 357 I).



- 28 -



I am in strong agreement with these views.



I have no difficulty whatever in coming to the
conclusion that corporal punishment upon adults, inflicted by an
organ of the state in consequence of a sentence directed by a
judicial or quasi-judical authority in Namibia is indeed a form of
"inhuman or degrading" punishment which is in conflict with
Article 8(2)(b) of the Namibian Constitution.



Corporal punishment in respect of Juveniles.



If corporal punishment upon adults authorised by
judicial or quasi-judicial authorities, constitutes inhuman or
degrading punishment in conflict with Article 8(2)(b) of the
Constitution, can it be succesfully contended that such



punishment is nevertheless lawful where it is sought
to be inflicted upon juvenile offenders in consequence of a
direction from such a similar judicial or quasi-judicial
authority? There is some dispute on this issue on the
authorities. In the case of the S v A. Juvenile, (supra)
the majority of the Court held that the imposition of a sentence
of whipping or corporal punishment upon juveniles did indeed
constitute inhuman or degrading punishment or treatment which
violated the relevant provisions of the Zimbabwean Constitution
which, as I have previously stated are substantially in the same
terms as the Namibian Constitution. The minority distinguished
the position of adults from that of juveniles and came to the
conclusion that the imposition of corporal punishment on juveniles
was not unconstitutional.



- 29 -



In the case of Tyrer, (supra) the European Court
of Human Rights also held that Article 3 of the European Convention
on Human Rights which correspond with Article 8(2)(b) of the Namibian
Constitution rendered unlawful an order sentencing a juvenile to
"three strokes of the birch". The reason for that
conclusion was that the judicial corporal punishment which was
ordered on the juvenile applicant amounted to degrading punishment
within the meaning of Article 3 of the Convention. (Paragraph 35 of
the judgment).



On the other hand in the case of Campbell and Cosans
v United Kingdom
, (1980) '3 EHRR 531 and (1982) 4 EHRR 293, the
majority of the Court held that teachers who inflicted corporal
punishment upon schoolchildren did not offend Article 3 of the
European Convention. This case however did not deal with corporal
punishment inflicted in consequence of a sentence from a judicial or
quasi-judicial authority.



It would seem to me that most of the six objections
against corporal punishment in general to which I previously
referred, would be of equal application to both adults and juveniles.
Juveniles also have an inherent dignity by virtue of their status as
human beings and that dignity is also violated by corporal punishment
inflicted in consequence of judicial or quasi-judical authority.



The manner in which corporal punishment is administered
upon juveniles is also intended to result in acute pain and



- 30 -



suffering which invades his dignity and self-respect of
the recipient. Such punishment is also potentially arbitrary and open
to abuse in the hands of the person administering the punishment.
Both the punisher and the juvenile sought to be punished are also
equally degraded. The juvenile is also alienated by such punishment.
Corporal punishment upon juveniles in consequence of judicial or
quasi-judicial direction also has a retributive element with scant
appeal to the rational and emotional sensitivities of the juvenile.



What then are the material differences which
could



sufficiently distinguish the position of juveniles
from



adults for the purposes of Article 8(2} of
the
Constitution?



There appear to be three arguments advanced in support
of such a distinction. The first contention is that the right to
impose corporal punishment gives to the sentencing officer the
opportunity of avoiding more unsuitable alternatives. Since most
juveniles would not be in the position to pay a fine, it is contended
that judicial officers might be compelled to resort to unsuitable
custodial sentences, if the alternative of corporal punishment was
made constitutionally unavailable. (See the judgment of McNally, J.A.
in the case of S v A Juvenile, (supra) at page 173 H.) In
support of this argument we were also reminded that there are no
suitable reformatories or correctional institutions apparently
available for young juveniles in Namibia at present.



- 31 -



I am not persuaded by this argument. The first issue
which requires to be determined is whether the infliction of
corporal punishment upon juveniles, in consequence of a punishment,
directed by a judicial or quasi-judicial authority, in fact
constitutes degrading or inhuman treatment within the meaning of
Article 8(2)(b) of the Constitution. If it does it is unlawful even
if the motive behind such a practice is to keep young offenders, who
need to be punished, out of prison. Means otherwise unauthorised by
the law do not become authorised simply because they seek to achieve
a permissible and perhaps even a laudable objective. (Van Eck N.O.
and Van Rensburg N.O. v Etna Stores
, 1947(2) SA 984 (A) at 996
998.) The provisions of Article 8(2) of the Constitution do not
permit of a derogation on such grounds. The duty of the Court is to
apply the clear provisions of the Constitution. As Warren, C.J. said
in Trop v Dulles, 356 US 86:



"We are oath-bound to defend the Constitution.
This obligation requires that congressional enactments be judged by
the standards of the Constitution. The Judiciary has the duty of
implementing the constitutional safeguards that protect individual
rights. When the Government acts to take away the fundamental right
of citizenship, the safeguards of the Constitution should be examined
with special diligence.



The provisions of the Constitution are not time- worn
adages or hollow shibboleths. They are vital, living principles that
authorise and limit governmental powers in our Nation. They are the
rules of government. When the constitutionality of an Act of Congress
is challenged in this Court, we must apply those rules. If we do.
not, the words of the Constitution become little more than good
advice.



- 32 -



When it appears that an Act of Congress conflicts with
one of these provisions, we have no choice but to enforce the
paramount commands of the Constitution. We are sworn to do no less.
We cannot push back the limits of the Constitution merely to
accommodate challenged legislation. We must apply those limits as the
Constitution prescribes them, bearing in mind both the broad scope of
legislative discretion and the ultimate responsibility of
constitutional adjudication."



The second argument in support of a constitutional
distinction between the position of adults and that of juveniles
subject to corporal punishment, is said to lie in the difference
between the way in which the punishment is executed. Our attention
was drawn firstly to Section 294 of Act 51 of 1977 which provides
that where the offender is a male person under the age of 21 years
the corporal punishment authorised can only be inflicted in private
and must consist only of "a moderate correction of a whipping
not exceeding seven strokes", which "shall be inflicted
across the buttocks which shall not be exposed during the infliction
but shall be covered with normal attire". This section also
provides that a parent or, as the case may be, a guardian of the
person concerned may be present when the whipping is inflicted
(Section 294 (3)) and a district surgeon or assistent district
surgeon must certify that the person concerned is in a fit state of
health to undergo the whipping".



We were further referred in this regard to regulation
100 of the Prison Regulations which provides for a different type of
cane which is authorised for the infliction of corporal punishment
on juveniles. Regulation 100(4)



- 33 -



provides that the cane to be used in order to inflict
corporal punishment on an adult prisoner shall be approximately 125
centimetres in length and 12 millimetres in diameter, whereas the
cane which is to be used to inflict such corporal punishment on a
juvenile prisoner must be approximately 1 meter in length and 9
millimetres in diameter.



I have little doubt that these and other similar
provisions appearing in the relevant statutes and regulations which
I have referred to in the earlier part of this judgment are intended
to ameliorate the harshness and the severity of corporal punishment
upon juveniles. They do not however in my view meet the basic
objection to all corporal punishment inflicted upon citizens in
consequence of a sentence imposed by a judicial or quasi-judicial
authority. Such punishment remains an invasion on human dignity; an
unacceptable practice of inflicting deliberate pain and suffering
"degrading to both the punished and the punisher alike".
Even in the case of juveniles it remains wide open to abuse and
arbitrariness; it is heavily loaded with retribution with scant
appeal to the sensitivity and rational responses of the juvenile. It
is inconsistent with the basic temper and the letter of the Namibian
Constitution.



The differences between adults and juveniles which
appear from the relevant statutes and regulations, with respect to
the manner in which corporal punishment is administered, are in my
view insufficient to convert punishment which is



- 34 -



degrading or inhuman for adults into punishment which
is not so degrading and inhuman in the case of juveniles.



The third argument which has been advanced in support
of the proposition that corporal punishment inflicted upon juveniles
in consequence of a sentence imposed by a judicial or quasi-judical
tribunal does not offend Article 8(2) of the Constitution is that -



... an adult whose character has already been formed
and hardened may be adversely affec­ ted by punishment which
humiliates him (i.e. forcibly makes him humble). Yet a young
person will not be adversely affected by similar punishment
because he is accustomed to subordination and open to
correction. This "humility" is part of the very nature
of youth, however rebellious". (Per McNally, J. in S v
Juvenile
, (supra) at page 171 H.)



I am not persuaded by this argument. A deliberate and
systematic assault with a cane on the buttocks of an individual
inflicted by a stranger as a form of punishment authorised by a
judicial or quasi-judicial tribunal, is inherently a demeaning
invasion on the dignity of the person punished. It must, in these
circumstances be degrading or inhuman. It does not become less so
because a juvenile might conceivably recover from such a basic
infliction on his dignity sooner than an adult might in comparable
circumstances. In any event McNally, J. who articulates this
distinction in Juvenile's case does not suggest that this
consideration by itself rescues such corporal punishment from being
inhuman or degrading. What he suggests is that combined with
the other two



- 35 -



considerations to which I have referred, it is
sufficient to justify the conclusion that juveniles who receive
corporal punishment in consequence of a sentence imposed upon them by
a judicial or quasi-judicial tribunal are in a constitionally
different position from adults who receive corporal punishment in
such circumstances. Since I am not persuaded that these other two
considerations are relevant and persuasive considerations which could
justify a constitutional discrimination between corporal punishment
for adults and corporal punishment for juveniles, it follows that
even the ancillary influence of the third consideration cannot make a
difference to my primary conclusion which is that the infliction of
all corporal punishment (in consequence of an order from a judicial
or quasi-judical authority) both in respect of adults as well as
juveniles, constitutes degrading and inhuman punishment within the
meaning of Article 8(2)(b) of the Namibian Constitution.



Corporal punishment in schools.



Corporal punishment of male students at government
schools in Namibia is clearly permitted by the educational
authorities. The relevant code issued by the Ministry of Education
Culture and Sport, to which I have referred earlier, seeks merely to
regulate the procedures which must be followed and to ensure that
only "moderate" corporal punishment is imposed on the
buttocks of male students, with an ordinary cane - which is not
longer than 75 centimetres and not thicker than 30 millimetres.



- 36 -



This Code does not limit the maximum number of
strokes which may be imposed on a student on a particular occasion or
the maximum that may be imposed in any defined period. Most of
the objections against corporal punishment inflicted in
consequence of a sentence by a judicial or quasi-judicial tribunal
would seem to me to continue to be of application where such
corporal punishment is sought to be inflicted as some kind of
sentence for acts of indiscipline (which are very widely defined
in the Code). It remains an invasion on the dignity of the
students sought to be punished. It is equally clearly open .to abuse.
It is often retributive. It is equally alienating. It is also
equally degrading to the student sought to be punished,
notwithstanding the fact that the head of the school who would
ordinarily impose the punishment might be less of a stranger to the
student concerned than a prison official who administers strokes
upon a juvenile offender pursuant to a sentence imposed by a Court.



I do not therefore believe that on the facts there is
any substantial difference between the objections which have been
proffered against corporal punishment on juveniles pursuant to a
sentence by a judicial or quasi-judicial Court and corporal
punishment on students in government schools pursuant to a
disciplinary Code formulated and administered by the Ministry of
Education, Culture and Sport.


The
real distinction between corporal punishment imposed in



- 37 -



government schools and corporal punishment inflicted on
offenders in consequence of a sentence imposed by a judicial or
quasi-judicial tribunal is said however to be based on legal grounds.
The judicial tribunal which imposes a sentence of corporal
punishment, it is argued, obtains its authority to do so from
govermental legislation or regulations whereas the school authorities
who do so obtain their authority from the common law just as parents
do. It is accordingly argued that the rights of the school
authorities to impose corporal punishment are no more subject to
review in terms of Article 8(2)(b) of the Constitution than the
rights of parents to do soi If the punishment is so excessive as to
be unlawful at common law it could be assailed in terms of Article
8(2)"(b) as being inhuman or degrading, but corporal punishment
per se at schools, it is argued, cannot be unconstitutional.



The courts outside Namibia which have addressed
themselves to the issue of corporal punishment in government schools
have expressed divergent views. In the case of S v A Juvenile
(supra) Dumbutshena, C.J. expressed himself strongly against corporal
punishment inflicted on schoolchildren but the court in that case was
not called upon to decide that issue and his remarks were therefore
obiter. The remarks of Dumbutshena, C.J. however are supported by
German Constitutional law which holds that the imposition of corporal
punishment on children at schools violates the German Constitution.
(Ingo von Munch "Grundgesetz-Kommentar" (3rd edition), vol
1 p. 154). The approach of Dumbutshena, C.J. also finds support in
the



- 38 -



dissenting opinion of Mr Klecker in the case of
Campbell and Cosans v United Kingdom, (1980)(3) EHRR 531 at
556 and in the dissenting opinion of Mr Justice White in the case of
Ingraham v Wright, 430 U.S. 651 and in the opinion of the
European Commission of Human Rights in the case of Warwick v
United Kingdom
(report dated 18th July 1986) referred to in
the case of S v A Juvenile at page 161 G -H.) Support for the
contrary view appears from the remarks of McNally in the case of S
v A Juvenile
at page 169 (J) and in various observations of the
majority in the case of Campbell and Cosans v United Kingdom,
(1980) 3 EHRR 531 and (1982) 4 EHRR to 93.



The system of corporal punishment at schools sought to
be protected in the present matter is regulated by a formal Code
formulated and administered by a Government Ministry. This was also
substantially the position in Zimbabwe and it was this distinction
which influenced Dumbutshena C.J. in Juvenile's case to state
that -



" ... in a system of education which has formal
rules on corporal punishment drawn by a competent authority, the same
consi­derations governing judicial corporal punishment must
apply".



I am in respectful agreement with this approach.



Whatever the position might be in cases where a parent
has actually delegated his powers of chastisement to a schoolmaster
it is wholly distinguishable from the situation which prevails ^ when
a schoolmaster administers and executes a formal system of corporal
punishment which



- 39 -



originates from and is formulated by a governmental
authority. Such a schoolmaster does not purport to derive his
authority from the parent concerned who is in no position to revoke
any presumed "delegation".



I am accordingly of the view that any corporal
punishment inflicted upon students at government schools pursuant to
the provisions of the relevant Code issued by the Ministry of
Education, Culture and Sport would be in conflict with Article
8(2)(b) of the Namibian Constitution.



The alternative arguments based on Article 10 of the
Namibian Constitution
.



The conclusions which I have come to are based on the
provisions of Article 8 of the Namibian Constitution. It is therefore
unnecessary for me to consider the very interesting alternative
submissions made by Mr Maritz based on Article 10 of the
Constitution which provides for equality and freedom from
discrimination. His submission was that the system of corporal
punishment in Namibia which discriminates between males and females
constitutes a contravention of Article 10, because the purported
discrimination is not rationally related to the objects sought to be
achieved by the relevant statutory provisions and regulations. I make
no comment on the merits of that submission because of the
conclusions to which I have come on the main submission based on
Article 8. The same applies to a number of other alternative
arguments which Mr Maritz advanced.



- 40 -



The appropriate order in terms of Article 25(1)(b) of
the Constitition
.



Article 25(1)(b) of the Constitution provides that if
a court is of the opinion that any law in force immediately before
the date of independence is unconstitutional, it may either set aside
the law or allow Parliament to correct any defect in such law, in
which event the provisions of Article 25(1)(a) shall apply.



I do not think that it would be appropriate "to
allow corporal punishment which is unconstitutional to continue to
be inflicted until Parliament makes the necessary amendments.



In the result I would make the following orders:




  1. It is declared that the imposition of any sentence by
    any judicial or quasi-judicial authority, authorising or directing
    any corporal punishment upon any person is unlawful and in conflict
    with Article 8 of the Namibian Constitution.



  2. It is further declared that the infliction of
    corporal punishment in goverment schools pursuant to the existing
    code formulated by the Ministry of Education, Culture and Sport or
    any other direction by the said Ministry





  • 41 -




or any other organ of the Government, is
unconstitutional and unlawful and in conflict with Article 8 of the
Namibian Constitution.



I.MAHOMED, A.J.A.



I concur



H.J.BERKER, C.J.



I concur


J.J.TRENGOVE,
A.J.A