[46] It was further claimed that age in itself was a redeeming feature; that while an adult whose character and personality has already been formed was likely to be hardened by the infliction of judicial whipping, the position was the opposite in the case of a juvenile. The basis for this was the view that as a juvenile's character was still in the process of formation, he was still susceptible to correction and advice; corporal punishment might therefore still have a reformative effect on the young even though it was accepted that it was likely to have the opposite effect on the old.
[47] I do not agree. One would have thought that it is precisely because a juvenile is of a more impressionable and sensitive nature that he should be protected from experiences which may cause him to be coarsened and hardened. If the State, as role model par excellence, treats the weakest and the most vulnerable among us in a manner which diminishes rather than enhances their self-esteem and human dignity, the danger increases that their regard for a culture of decency and respect for the rights of others will be diminished. As Brandeis J observes in a dissenting opinion in Olmstead v United States:
"Our Government is the potent, the omni-present teacher. For good or for ill, it teaches the whole people by its example."[1]
[48] The issue of corporal punishment at schools is by no means free of controversy. The practice has inevitably come in for strong criticism.[2] In Costello-Roberts v United Kingdom,[3] the European Court applied the criteria set in Tyrer v United Kingdom that, in order for punishment to be "degrading" and in breach of article 3 of the Convention, the humiliation or debasement involved must attain a particular level of severity and must, in any event, be other than the usual element of humiliation inherent in any punishment. It drew a distinction between a judicially imposed whipping, as in Tyrer v United Kingdom,
- ↑ 277 US 438 (1928) at 485.
- ↑ See the remarks of Dumbutshena CJ in S v A Juvenile supra note 45, at 161E–162E. See also Campbell and Cosans v United Kingdom supra note 64, at 556.
- ↑ Judgment delivered on 25 March 1993. Appellants referred to and included in their brief a Press Release issued on 25 March 1993 by the Registrar of the European Court of Human Rights which contained a synopsis of the judgment delivered that day. See also the discussion in Barry Phillips, The Case for Corporal Punishment in the United Kingdom. Beaten into Submission in Europe, 43 International and Comparative Law Quarterly (1994) 153.
