Despite a Constitutional Court ruling, children are still being sentenced to whippings as punishment for petty offences, writes Annicia Reddiar
WHIPPING of juvenile offenders has not stopped in all of South Africa, in spite of a Constitutional Court ban more than two months ago. And fingers are being pointed at Justice Minister Dullah Omar for not notifying courts of the ruling.
Lawyers for Human Rights (LHR) discovered last week that since June 9, when the Contitutional Court declared whipping unconstitutional, 17 children between the ages of 13 and 17 had received cuts after sentencing for petty offences in Umtata. LHR said it was possible the practice could also be continuing in “other rural areas of the country”.
The disregard of Umtata magistrates of a Constitutional Court ruling raises serious questions about the implementation of the court’s decisions — and about the strength of procedures to inform relevant
In this instance, the National Children’s Right Committee (NCRC) blames Omar, whose ministry appears to have neglected a duty to inform the lower courts.
The whippings were discovered when an LHR Umtata field worker, Maggie Tserere, followed up on a rumour and found 15 cases where the 17 children had been whipped. Most of them had been sentenced for theft and
It was brought to the attention of NCRC, and last Friday its executive director, Shirley Mabusela, faxed Omar and Judge Arthur Chaskalson, president of the Constitutional Court.
Mabusela told Omar: “Needless to say, we are shocked by these findings. We understand that the responsibility for ensuring that decisions taken by the Constitutional Court are enforced falls within your ministry. We request an immediate cessation of judicial whipping in all provinces.”
On Saturday, advocate Wim Trengove of the Legal Resources Centre phoned Omar and the district police commissioner and supplied them with case information on the whippings. Trengove told Omar that, if needs be, an urgent application would be brought to put a stop to the whippings. Trengove told the Mail & Guardian this week that Omar was “surprised, and grateful that we brought it to his attention”, and that he promised to see that it was stopped immediately.
Mabusela charged this week that all too often children’s rights are side-lined. “With the death penalty, immediate steps were taken to ensure that it was stopped. When it comes to this issue, it does not look like anything is being done. It seems like magistrates are saying, ‘Until we get a directive, we’re just going to continue.’ We find that
A prominent human rights lawyer commented that if the whippings continued with knowledge of the Constitutional Court decision, it pointed to serious problems for the judicial process. “It’s highly unlikely that any judicial officer was unaware of a ruling as important as this.”
Ann Gardner of the National Institute for Public Interest Law and Research, which co-operated with the NCRC on the matter, said legal action may be taken in spite of Omar’s assurance that the whippings would stop. She questioned the two-and-a-half month delay, saying: “I’m tired of apologies. It’s unfair that the government can just say that they’re sorry. Maybe we should take some action; the children should get compensation for damages.”
Omar confirmed on Thursday that he had been called by Trengove. “He informed me that he had instructions to apply to the Constitutional Court for an order to stop courts in the Transkei from imposing corporal punishment on juveniles.”
Omar said that before the Constitutional Court ruling, he had already asked for a moratorium.
He said he has now written to Umtata ordering that whippings end, pointing out that it is “illegal and exposes the Department of Justice and the minister to potential civil claims for damages”.