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www.corpun.com :  Features :  South Africa judicial page 1

JUDICIAL CORPORAL PUNISHMENT IN SOUTH AFRICA

Feature article by "Investigator"

With additional material by Colin Farrell



CONTENTS

On this page:

1. Introduction

2. Implements and terminology

On other pages:

3. Historical background and legislative timeline

4. Corporal punishment of "juveniles"

5. "Prison discipline" canings

6. What caning of adults involved

7. What caning of juveniles involved

8. Interesting cases (adult)

9. Interesting cases (juvenile)

10. Statistics

11. Illegal punishments, kangaroo courts, native/customary courts

12. The deterrent effect of corporal punishment

13. The abolition of JCP


 

1: INTRODUCTION

Apart from present-day Singapore, there can hardly be another country where judicial corporal punishment (JCP) was used as widely as in twentieth-century South Africa. JCP evolved over a long period from traditional use under British colonial administration for serious crimes only, to a mandatory requirement in the 1950s and 1960s for many crimes in the case of adult men. In a milder form it was also over many decades a routinely inflicted penalty for males under 21 for any offence.

Its abolition came about as a result of both judicial and legislative intervention in the 1990s.

This article covers the use of CP on adults and juveniles, both when ordered by a court as a punishment for crimes, and as a punishment for breaches of discipline within penal institutions.

Map: Where is South Africa? The legislative history of the punishment is outlined, and detailed descriptions of the procedure by observers, and those who have undergone it, are provided.

It is interesting to observe that, despite the notorious harshness of the apartheid era and the authoritarian nature of the regime, the judiciary –- which never entirely lost its independence from the executive -- was often reluctant to impose the penalty. On occasions, amendment of the law was suggested by the courts, and a series of judicial pronouncements over many years gradually restricted its application.

Students of caning in present-day Singapore will note that, stroke for stroke, the South African version was probably just as severe. The cane used on adults was of the same dimensions as the Singapore rotan. However, the courts and the legislature kept the maximum number of strokes well short of Singapore's 24-stroke maximum.

Unlike Singapore, South Africa continued to follow the UK model in making a sharp distinction between juvenile and adult JCP. This was not just a question of different sizes of cane. Juvenile caning was an everyday affair, seen as a relatively minor punishment. It was usually administered the day it was ordered. This took place in the court precincts or a nearby police station, and it was normally the police who inflicted it. It was not combined with imprisonment. Indeed, its stated purpose was to keep youngsters out of prison.

The adult version of the punishment, as in the UK before 1948 (and like present-day judicial caning in Singapore), was usually ordered as an addition to a sentence of imprisonment. In any event it was always administered in prison, by prison officers. This was much less frequent than juvenile caning, again reflecting pre-1948 UK practice with the birch.

The records also reveal the use of the cane on women in one part of the country, Transkei, and significant use of illegal or "unofficial" floggings, sometimes by tribal or "customary" local courts with a semi-official status or to which the authorities turned a blind eye, and sometimes by entirely unofficial vigilante groups -- a practice which continues to this day despite the statutory abolition of the punishment.


2: IMPLEMENTS AND TERMINOLOGY

In 19th-century South Africa it was customary to whip adults with the cat-o'-nine tails and to use the cane on juveniles. However, by the 1940s the cat-o'-nine-tails, or lash, was little used. In 1944 its use was restricted by legislation to the Supreme Court (S.A. Magistrates Courts Act 32 of 1944). The cat enjoyed a brief resurgence between 1948 and 1950, when 281 offenders received it.(1) It seems it was last inflicted in 1958. (2)

This did not prevent a Minister of Justice of the early 1950s from posing for a press photograph holding a cat-o'-nine-tails. Strictly speaking this was a somewhat misleading portrayal by then, but arguably it set an appropriate tone for 40 years of merciless Afrikaner National Party rule:

politician with cat
[from an unidentified book]

The universal form of corporal punishment in modern times, then, has been the application of a cane to the buttocks.

A word that frequently appears in the Afrikaans version of legislation and official documents is "lyfstraf", which translates literally as "corporal punishment".

The English-language texts used "whipping", following traditional British legal terminology (even though a whip was not actually used).

In news reports and common parlance one was more likely to find the word "caning" or, most frequently of all, simply "cuts".

A leading criminologist, Dr James Midgley, claimed in 1976 that the term "cuts" was "brutally appropriate" as "in excess of four cuts, a whipping will often cause bleeding and scarring".(3)

In S v Walker [1964] 3 SA 162 the Supreme Court considered the terminology of corporal punishment. The case was a review from a sentence for theft of six months’ imprisonment and "six lashes". The sentence was confirmed but the court found that the term "lashes" was not an appropriate word.

The court referred to Prison Regulation 100(3):

"(a) Lashes with a cat-o’-nine tails shall be inflicted with such instrument and in such manner as may be determined by the Commissioner.
(b) Lashes with a cane shall be inflicted across the buttocks in such manner as may be determined by the Commissioner."

The court observed that it would be unrealistic to assume that every gaoler had the Prison Regulations at his elbow when preparing to administer corporal punishment prescribed by a court, so as a matter of practice it was advisable for judicial officers to avoid using the term "lashes" when they meant "strokes" or "cuts" with a cane. Amending the sentence, the Court substituted the word "cuts" for "lashes".


FOOTNOTES

(1) James O. Midgley, "Corporal Punishment and Penal Policy", 1982 J. Crim. L. & Criminology Vol. 73 No 1, p.394.

(2) Albie Sachs, Justice in South Africa, Chatto & Heinemann, London, 1973, p.198.

(3) "Spare the rod and save the child", Sunday Express, Johannesburg, 21 March 1976.


blob Next: Section 3: Historical background and legislative timeline


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