CONTENTS

11: ILLEGAL PUNISHMENTS, KANGAROO COURTS, NATIVE/CUSTOMARY COURTS

Alongside the official judicial CP set-up in South Africa, there have often been "informal" JCP systems of varying degrees of legality.

As in some other parts of Africa, individual local tribes in certain areas have often had their own "courts", typically simply a village meeting at which "elders" or "chiefs" rule on disputes and order punishments. In some cases whipping or flogging has been one of these.

Where arrangements of this kind worked satisfactorily, the authorities often appear to have been content to leave them alone.

An attempt to incorporate these informal structures into the official system came in 1927 with the Black Administration Act No 38. This provided for a chief or headman to be empowered to punish offences under common law or "black law and custom", notably such things as stock theft. For unmarried males under 30, the penalties could include corporal punishment.

These provisions were re-enacted in 1967 (Proc R348).

The system is based on heads of clans, known as "traditional leaders". One traditional leader has recently written:

"The courts of traditional leaders have jurisdiction over both criminal and civil cases. Proceedings are held in the open, literally and figuratively, under a chosen tree or near the cattle kraal [...] The process is inclusive, allowing all present to participate in the examination and cross-examination of all the parties to a case. There is decorum and respect for authority [...]

"The goals of the justice administration are the rehabilitation of the offender, the reconciliation of the parties, the compensation of the aggrieved party and the promotion of peace within the community. The system of incarceration of the offender does not exist."(1)

The author, President of the Congress of Traditional Leaders (Contralesa), went on to lament the fact that corporal punishment was no longer allowed to be used (see quote in Section 12).

Occasionally a tribal court has exceeded its powers and the matter has ended up in the "real" legal system.

Thus, S v Seatholio [1978] 4 SA 368 involved a punishment of a married man of 56. He had failed to pay a fine imposed because his children had been illegally chopping wood. He was sentenced by a tribal court under Black Administration Act 38/27 to 12 strokes. The punishment was meted out with a plastic sjambok on the buttocks. It was claimed that this caused open wounds, but this was denied. The court noted, however, that under s.20(2) of the Act corporal punishment should be imposed only on unmarried males under 30. The man's conviction and sentence were set aside – although the latter was too late as it had already been inflicted.

R v Kumalo [1951] 3 SA 381 concerned an assault charge against a Native chief and his constables. The complainant was a 65-year-old native who had misbehaved in a Native Court. He had been ordered to receive 10 strokes with a sjambok, 4 feet in length. He was held down and the first defendant delivered 3 strokes and the fifth defendant (a stronger man) delivered 7 strokes. The beating was a severe one, the marks of the sjambok on the legs and buttocks being visible three months later.

Tribal or "native" courts appear to be an essentially rural phenomenon, typically dealing with property crimes such as cattle theft in a socially stable agricultural environment.

But the system could not readily be transplanted to the urban townships, a series of artificial black ghettos where social structures were fragmentary and the political situation explosive, with widespread resentment of the apartheid regime, particularly among the young.

In the 1970s unofficial "crime-busting" groups called makgotla came to prominence, notably in the huge black township of Soweto. These were illegal groups of vigilantes or "home guards" who held their own "trials" on patches of waste land. On-the-spot floggings sometimes ensued.

One such was featured on television in an ITN news report in the late 1970s. A teenage boy was shown being tried at a makgotla "court" and sentenced to five lashes. These were given across the seat of his trousers as he was made to lie face down on the ground. The reporter said he thought the sentence would have been heavier had TV cameras not been present.

In 1974 the police chief in Soweto issued a warning that floggings at the instance of tribal courts in the township would no longer be tolerated.(2) But clearly the authorities did not succeed in stopping them.

Perhaps because these urban bodies were self-appointed and lacked the de facto popular legitimacy of the rural chiefs, in some cases they turned into mere gangs of thugs, often operating under the aegis of particular local politicians. Other leaders protested that they were dangerous because they were divisively partisan and operated without police supervision (3):

The chairman of the Soweto Council, Mr David Thebehali, was questioned about the All Nation Guards, the crime-busting wing of his All Nation Party [...]

[...] A Soweto mother, Mrs Jacobeth Mofolo, claimed that she and her daughter, Emily, were flogged by members of the All Nation Guard last month. She said they were made to lie prostrate on a table and whipped with sjamboks after a feud between her daughter and a neighbour's child [...] (4)

As a consequence, the authorities again attempted to formalise the system and bring it under control:

The Department of Co-operation and Development is planning to establish civil and criminal tribunals in black urban areas in the Witwatersrand.

The tribunals, which are to replace the unofficial kangaroo courts begun by people like Mr Siegfried Manthala and Mr David Thebehali in Soweto, are to be modelled on tribal courts run by chiefs and headmen in tribal villages.

The department has already given the Chief Commissioner for the Witwatersrand guidelines on how to establish the tribunals.

Suitable people are to be appointed to conduct the courts. Their powers will be similar to those granted to chiefs and headmen and they will not be subject to the authority of community councils. Members of community councils cannot, for various reasons, qualify for appointment to such courts.

Initially, the tribunals will be restricted to hearing civil claims arising from customary law as well as crimes punishable under common law, according to the department's advice to the chief commissioner.

The tribunals will replace makgotla. Each appointed person to whom judicial powers are granted can establish his own kgotla if he wants to. But members of the kgotla will receive no remuneration. [...] (5)

These ideas did not command universal support:

The Dobsonville Council has asked for the establishment of community guards and tribal courts which will be known as tribunal courts -- and the move has been attacked by Soweto leaders.

The council chairman, Mr Don Mmesi, said the community guards would replace Makgotla.

The establishment of the guards and tribunal courts in Dobsonville will the first of their kind in South Africa since the establishment of the community councils.

The Community Council Act empowers the councils to introduce community guards and tribunal (summary justice) courts.

[...] The judicial officer can impose fines [...]  He also has the power to impose corporal punishment, but only in cases of unmarried men under 30.

[...] Soweto leaders condemned the introduction of the guards and tribunal courts and said many people would suffer.

Mrs Deborah Mabiletsa, president of the women's division of the South African Council of Churches (SACC), said the introduction of the guards and tribunal courts was "just a deep plunge into the 19th century when we are in the 20th century".

A school principal was totally against the idea. He said the community guards, who would operate on similar lines to Makgotla, would promote crime and thuggery at night. (6)

The controversy continued in the national parliament:

THE ASSEMBLY.  -- The Government was trying to enforce outdated tribal laws on Westernised blacks who had adopted the urban way of life, Mrs Helen Suzman (PFP Houghton) said yesterday.

Mrs Suzman launched a strong attack on the clause providing for judicial powers to be conferred on blacks in terms of the Laws on Co-operation and Development Second Amendment Bill, which was read a third time.

Mr Pierre Cronje (NP Port Natal) said the Bill was the legalisation of a principle decided many years ago.

"The merits or demerits are absolutely irrelevant now," he said.

It was not a question of imposing tribal laws on blacks, merely a question of legalising measures in terms of other legislation in 1927 and again in the Community Councils Act of 1977.

[...] Mr Cronje said he took exception to Mrs Suzman's reference to the makgotla courts as "kangaroo courts" and a crude form of justice.

[...] Mr Bill Sutton (NRP Mooi River) said his party would support the legalisation of people's courts.

The community councils at Port Elizabeth, Uitenhage and Grahamstown have already indicated their willingness to adopt the system. (7)

Political violence and polarisation intensified in the 1980s. Groups of young radical blacks calling themselves "comrades" emerged. In 1986 the BBC interviewed "Comrade Boy", who, in his mid-twenties, was running a "People's Court" in another Johannesburg township, Munsieville:

[...] Held in a classroom in Munsieville's primary school since January, the court is in session every night from five until nine. So far only petty offences like boycott-breaking, family squabbles and common assaults have been dealt with. The sessions are well attended. 'Everyone in the courtroom is a magistrate,' explains Comrade Boy. 'So the decision comes from the people, after the defendant and the claimant have presented their case.'   The most severe punishments inflicted so far have been lashes. [...]   (8)

Five years later the London Guardian reported on a similar state of affairs in Mamelodi, a township outside Pretoria, and yet again it was asserted that central government was proposing to co-opt these unofficial arrangements "in order to control them and bring an end to the brutality now associated with them":

[...] In the continued absence of effective policing in South Africa's townships there is a growing tendency for residents to take the law into their own hands and a proliferation of kangaroo courts [...]

[...] flogging is the favourite "sentence". The beatings, often referred to by the Zulu term siwasho, which means "cleansing medicine", are sometimes dealt out in terms of duration rather than the numbers of lashes.

A Mamelodi teenager recently flogged for alleged rape described this week how sentence was carried out by 15 youths armed with sjamboks.

"They took me into a classroom and began beating me two at a time. Each group of two beat me for at least 30 seconds before the next entered. When they had each had a turn, before the three-minute sentence was over, they call came in a beat me for the remainder of the time."

The "proceedings" of the courts are carried out with a sometimes perverse formality which brings its own air of malevolence.

A "summons", for example, delivered to one accused -- in immaculate writing on what appears to be a page torn from a school exercise book -- says:  "You are hereby invited to join us today ... together with the parents of both accused and complainers. We are sending you our marshals as a sign of comradeship and support."

The courts are set up by sectional and "street" committees formed on the encouragement of the United Democratic Front and the African National Congress in an attempt to establish a form of  "alternative government" in the country's townships.

The committees have tended to fall under the control of unemployed youths who have conducted the courts with what might be described as the arrogance of their age. [...] (9)

In December 1994, residents of the Ivory Park squatter settlement in the mid-Rand area likewise drew up their own rough penal code. The guidelines were later adopted by other squatter settlements in the Gauteng region.

Punishments tended to be of the severe physical kind, possibly because there was not the option of putting those found guilty in prison. The Ivory Park Peoples Court Code of Punishment laid down the following penalties:

This "court" was still operating in 1998 regardless of the fact that South Africa had now become a democracy under the rule of law. One of its victims, Gideon Muguni, showed reporters the marks on his buttocks and legs after he was given 50 lashes with a sjambok for "being friendly to women". He claimed that many innocent people were being severely sjambokked. (10)

In January 1994 the academic anthropologist Nancy Scheper-Hughes was present at the flogging of three teenage boys by a kangaroo court at the Chris Hani squatter camp in Cape Town.

The boys had stolen money from a shebeen. Initially people demanded their death:

As the boys sat trembling and awaiting their fate, a few youth leaders, invoking the ANC Bill of Rights, dangerously raised their voices in protest and successfully argued for public whippings over the death penalty. Further debate ensued and the demand for 100 strokes with a sjambok [...] was skilfully negotiated down to 50 lashes for each boy caught "red handed". The floggings were laid on "collectively" by several designated older men of the community.

She visited the boys three days later and observed their "raw and bleeding backsides":

The boys were not a pretty sight, though some in the community thought they had gotten off easy with just 50 lashes. The penal whip lay limp and tired against the wall. [...] They could not bend their legs, sit down, or walk without wincing [...] (11)

The makgotla in the urban areas were essentially driven by socially conservative values, and were mostly tolerated (or possibly at times even quietly encouraged) by the then white-supremacist government. The "people's courts", on the other hand, were broadly an outgrowth of the black liberation movement, often with links to such anti-apartheid groups as the ANC, and run by mostly young people whose overarching purpose was fundamental regime change (which was achieved in 1994, when the ANC came to power after the first democratic elections).

But as we have seen, the "right-wing black vigilantes" and the "left-wing black vigilantes" used remarkably similar methods. In so far as these included floggings, this state of affairs rather undermines claims that corporal punishment can be seen as an alien or "un-African" procedure imposed from outside black culture by, and peculiar to, either the Afrikaner regime or its British colonial predecessors.

Back in the countryside, in 1996 a group called Mapogo a Mathamaga was set up in the Northern Province. Its members are largely black businessmen (some of whom had done surprisingly well out of the old regime) and white farmers, always the most conservative group in South Africa. (12)

By 2000 the organisation was claiming 50,000 members and had spread to other parts of the country.(13)

One of its main aims is to suppress crime, particularly property crime, in areas where the official police and judicial systems are perceived to be overstretched and/or inefficient. Initially it arrested suspects and handed them over to the police, but when police failed to follow up on some of these cases, Mapogo changed tactics and began to take the law into its own hands.

Its vigilante methods have been widely criticised for their arbitrary brutality and lack of due process. But Mapogo's founder, John Monhle Magolego (pictured right), stoutly defends the faith it places in "African medicine" -- the sjambok:

"If the suspect hides information and there is strong evidence against him, a bit of sjambokking (whipping) will be done to dig out the truth. When they don't come out with the truth, they get a walloping. We don't encourage members to overdo the beating. But let me tell you, the criminal arrested by Mapogo - the one who is sjambokked - will never repeat the deed, he'll be 'born again'."

He has consistently maintained that prison is no use:

"Criminals like going to jail. They get three free meals a day. If they must go to jail then at least they must sit on very sore buttocks." (14)

On another occasion he has said:

"Petty criminals should rather be whipped or caned for their offences. It costs nothing and is far more effective than long prison terms, which cost the taxpayer millions and force criminals' families to steal just to survive." (15)

The phenomenon was reported around the world, as in this UK press item in 2001:

South Africa's soaring crime rate, and the failure of the country's police force to halt it, has led to the rise of vigilante gangs who use brutal tactics to administer "justice".

[...] To their supporters these groups offer salvation, an "African response to an African problem", making up for the inadequacies of the South African Police Service by tackling crime head-on. To their detractors, they are unaccountable, lawless thugs meting out mob justice for whoever deigns to pay protection money. Whatever your stance, there can be no debate about how popular they have become in rural areas, where they are believed to have more than 100,000 members promising vigilante justice.

[...] In the eyes of Mapogo's founder, Monhle John Magolego, the group is uncompromisingly brutal but fair:

The fact that white (generally Afrikaner) farmers are among Mapogo's strongest supporters is perhaps not surprising, because they have long had a reputation for taking the law into their own hands on their farms, particularly in relation to recalcitrant black employees. Such behaviour, though illegal, was rarely prosecuted and, when it was, the courts tended to take a lenient view of it:

Arbitrary violence by farmers appears to be an accepted part of the rural social fabric. Judges almost condone it by their light sentences and police certainly don't appear to act vigorously against it. (17)

An example of this was S v Collett [1978] 3 SA 206, where the court considered an illegal punishment by the appellant of a 16-year-old boy on a farm. He had stolen petrol and was offered a beating. He agreed to 6 strokes with a cane. He was fastened by handcuffs to a block and tackle with his feet off the ground - to prevent him wriggling - and he was given 6 cuts on his buttocks in the presence of others with a stick 18in. to 2ft long and ¾ inch thick. The strokes were administered at 5-second intervals. The appellant raised his arm to shoulder level when administering the cuts. The victim did not cry out and he returned to work afterwards and recovered in 3 months. An 18-year-old who had stolen $7 and other things received 9 strokes with a fan belt on a handle. He was fully clothed. The appellant was found guilty, but received a reduced sentence.

Under the new regime in South Africa, farmers might not so easily get away with this sort of behaviour, so they join groups like Mapogo instead. As one of them has said:

I'm a white farmer and most of the criminals are black. If I shoot the black attacker dead on my farm, I would be labelled a racist. So why suffer all the humiliation and nightmares thereafter, if Mapogo can do the job for me at a fee? (18)

A final and different example of South Africa's "long history of informal justice"(12) involves the police arranging an unofficial caning for two young men in agreement with their own father. This was S v Kingston [1976] 4 SA 85, where the appellant had been convicted in the Magistrates Court of two counts of robbery. He was imprisoned for 10 months on each count. Police found drugs on him and approached his father to ask what he felt should be done. The father suggested a beating at the police station. The officer in charge of Mrewa Prison was then summoned and came to the police station and the appellant was given 6 cuts with a light cane and his brother 5 cuts by this officer. The appellant said that it was the police who had suggested the beating and he was given 8 not 6 cuts. On review, the court held that the thrashing was improper, and the conviction was set aside.

FOOTNOTES