and punishment meted out on a juvenile boarder through disciplinary rules in force in a private school. This amounted to being slippered three times on his buttocks through his shorts with a rubber-soled gym shoe by the headmaster in private. The court held that in the circumstances of the particular case, the minimum level of severity had not been attained. It is noteworthy that the decision was carried by the narrowest of margins, with five judges voting for it and four against. What is of interest is how the Euorpean Court, in the exercise of a value judgment, went about evaluating the impugned conduct and distinguishing between the concepts `inhuman' and `degrading.'[1]
[49] It is not necessary to comment on the suggestion that judicial corporal punishment is in reality no worse than cuts imposed at school; the subject of corporal punishment in schools is not before us. Suffice it to point out that the European Court in Costello-Roberts v The United Kingdom[2] seemed to attach some importance to the difference between strokes inflicted by a policeman as a result of a court order, on the one hand, and corporal punishment administered by a headmaster in terms of disciplinary rules in force within the school in which the youth was a boarder. On the other hand, it was White J in a dissenting opinion in Ingraham v Wright who stated:
"Where corporal punishment becomes so severe as to be unacceptable in a civilised society, I can see no reason that it should become any more acceptable just because it is inflicted on children in the public schools."[3]
[50] The Constitution requires us to "have regard" to the consensus referred to above;[4] we are not bound to follow it but neither can we ignore it. The determinative test will be the values we find inherent in or worthy of pursuing in this society which has only recently embarked on the road to democracy. Already South Africa has lagged behind. The Constitution now offers an opportunity for South Africans to join the mainstream of a world community that is progressively moving away from punishments that place undue
- ↑ Press Release supra note 67, paragraphs 30–32. See also Barry Phillips supra note 67, at 168.
- ↑ Press release supra note 67, paragraph 31.
- ↑ 430 US 651 at 692.
- ↑ See section 35(1) of the Constitution.
