Division that he wished to withdraw the argument which had been filed on his behalf (and on behalf of the State) as he shared the view that the provisions relating to corporal punishment in section 294 of the Act were unconstitutional. Mr. Slabbert, who is a member of the Attorney General's staff, however agreed to present the opposing argument as amicus curiae in accordance with the written argument which had been filed on behalf of the State. We place on record our appreciation to him for having undertaken this task.
[3] Purely for the sake of convenience, I shall refer to the accused as the applicants and to the position adopted by Mr. Slabbert in his argument as that of the State.
[4] Although each of the cases has a history of its own, much is in common. The applicants are all males and they are all juveniles. Three of them, namely, Williams, Koopman and Mampa were each sentenced to suspended prison sentences in addition to the juvenile whipping. The remaining three were sentenced to juvenile whipping only. All the trials had commenced before 27 April 1994; each of the sentences was passed after 27 April 1994.
[5] The Provincial Division became seized of the matters in two ways: all five cases were subject to automatic review in terms of section 302(1)(a) of the Act because of the terms of imprisonment, albeit suspended, imposed on the applicants themselves or on their fellow accused who do not feature in the present proceedings. In addition to this, Mr. A.P. Dippenaar who presided over the case involving Williams, requested that the sentence of strokes be subjected to special review in terms of section 304(4) of the Act. He took this step because he doubted whether juvenile whipping was a permissible punishment in the light of the provisions of the Constitution and in view of the decision in Ex Parte Attorney-General, Namibia: In re Corporal Punishment By Organs of State.[1]
[6] Whether, as a matter of strict law, the Magistrate was correct in deferring the execution of the whipping[2], is not in issue. He deserves to be commended for treating as a matter of
- ↑ 1991(3) SA 76 (NmSC).
- ↑ In S v Pretorius 1987(2) SA 250 (NC) it was held that where a magistrate has, in terms of section 294 of the Act, sentenced a juvenile offender to a whipping, and has conjoined a sentence which is subject to automatic review
