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www.corpun.com :  Features :  South Africa judicial page 11

JUDICIAL CORPORAL PUNISHMENT IN SOUTH AFRICA

Section 12



CONTENTS

On this page:

12. The deterrent effect of corporal punishment

On other pages:

1. Introduction

2. Implements and terminology

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

13. The abolition of JCP


12. THE DETERRENT EFFECT OF CORPORAL PUNISHMENT

Probably the most contentious question about JCP has always been whether or not it really acts as a deterrent to crime. The point has been discussed intensively in many societies for at least 200 years.

In the UK, the 1938 Cadogan Report came to the conclusion that CP was not a deterrent, or not particularly so. As far as adult flogging was concerned, Cadogan purported to show by means of some re-offending statistics that CP had no particular propensity to inhibit recidivism in the case of an individual. The evidence presented as to juvenile JCP was more anecdotal.

Many judges (among others) strongly disagreed with Cadogan's conclusions. Nevertheless, the report's headline finding -- "corporal punishment is not a deterrent" -- quickly became the conventional wisdom among policymakers and the political class, and not only in the UK. It has continued to be so, despite the report's statistics and methodology having more recently been seriously challenged as flawed, for example by Professor Graeme Newman in his pathbreaking book Just and Painful (1985).

In South Africa, the 1947 Lansdown Report (1) noted what Cadogan had said in the UK about juvenile CP but paid no attention to its statistical exercise in relation to adults. Rather, it stated at para. 495 (unofficial translation from Afrikaans):

The opponents of whipping doubt its effectiveness as a deterrent, whilst its upholders claim just as strongly that much lawlessness which is now kept under control would follow abolition. There are no reliable statistics in this matter.

Lansdown noted the need for "sensible realism" and continued:

However the argument may be conducted over the available statistics, to the intelligent observer it is still indisputable that whipping under the present conditions in South Africa can have and has had the effect of frightening wrongdoers and other non-law-abiding persons. It is therefore the Commission's opinion that whipping must be kept for adult offenders of all races.

Some judges seem to have taken it as read that JCP is a deterrent. In R v Philip Harrison (20 June 1921) the offender was convicted of housebreaking, having stolen two blankets. The court observed:

"It is the opinion of many who have seen this punishment actually inflicted that the physical pain resulting from six or eight lashes is as much as the human frame can endure with consciousness. If, then, the memory of past pain and the fear of its recurrence will operate at all on the mind of a criminal to deter him from again offending, both the memory and the fear should ordinarily result from the infliction of six lashes".

In R v Anthony and R v Mbeza [1952] 4 SA 532, the judge remarked:

"I am sure my decision to order strokes in addition to imprisonment up to 10 strokes will have a deterrent effect. I have a full gallery every day and I can hear from their moans when sentence is passed that it is sinking in".

A magistrate, writing in 1984, claimed success for the idea of imposing whipping only, or whipping combined with a suspended prison sentence. This was a new policy designed to reduce prison overcrowding (unofficial translation from Afrikaans):

Over a period of three years at a rural court I have often imposed whipping, especially in the case of first offenders where the gravity of the case admits it. Sometimes I impose whipping only [...] Sometimes cuts are imposed together with a postponed sentence which makes provision for compensation.

[...] The success which I have obtained is encouraging. Of all the offenders who were sentenced to whipping over three years, only one has appeared before me again. [...] (2)

In S v Kumalo and Others [1965] 4 SA 565AE, the court set out seven reasons justifying sentences of whipping. The first two were:

1. [...]  in order to put an end to a wave of a particular type of crime.

2. [...]  in order that others may be shocked into a realisation that a continuation of a particular type of offence may result in the imposition of floggings upon offenders.

The Viljoen Commission in its 1976 report said that evidence given by African witnesses was almost unanimous in calling for whipping to be retained. These witnesses argued that it was respected by Africans and was believed to be an effective deterrent. Some had asked that it be not only retained but used even more frequently by the courts. (3)

This is clearly still the view of the leader of the vigilante organisation Mapogo a Mathamaga:

This man has three children and is working. He does crime in his life and according to the [Western] law, he should be thrown in jail for hundred years. Who is going to feed his children and wife? Is that a way to build a nation or to destroy a nation? The children of this man will grow and become criminals, because no one is feeding them. An African man will take that man and tell him to sjambok him so that he will get rid of this criminal behaviour and go work for his children. What I am saying is that the African way to stop crime is best. (4)

Turning to the much more frequent canings of boys under 21 by the police ("section 292 whippings"), opinions on their deterrent value remain sharply divided.

The Lansdown Commission wrote in 1947 (unofficial translation from Afrikaans):

485. [...] If the home life of the youth is such that punishment and instruction at home is reasonably certain, whipping can demonstrate the court's displeasure with the offender's behaviour, to frighten him and others, and as a means of punishing him without unnecessarily disrupting his life.

486. There are, however, cases where the juvenile court applies corporal punishment because there is no better method of dealing with the child. [...] It is bad for the juvenile offender to feel that he can break the law without being punished, as he will probably do if he receives only a reprimand.

487. Where other and better methods exist, there is no benefit in using the cane, but where better methods are lacking, a thrashing is a better deterrent than no punishment at all. If, however, corporal punishment is necessary, it is desirable, wherever feasible, to couple it with supervision by a probation officer or other suitable person, ordered in terms of Article 350(2) of Act No 31 of 1917 for a person under the age of 19. In treating young offenders it is essential to take all reasonable steps to keep them out of prison. (1)

Our elderly correspondent who was sentenced to juvenile caning on two occasions in the 1940s has written:

I have come to the conclusion that the thrashings did not act as deterrents. The mind does not easily remember pain: it merely associates an episode with events, in terms of unpleasantness, so that whereas 10 minutes after getting eight lusty cuts on his bare seat, with his whole body on fire and his tail feeling as if a swarm of wasps had attacked it, a boy would say "never again", two weeks later, with the admiration of his peers, the sense of "having got away with it" and the virtual termination of pain, it was suddenly "worth it". (5)

Of course, the effect on individual offenders can tell us nothing about the wider deterrent effect of a particular penalty, i.e. to what extent news of it deters other people from committing offences in the first place. Even if the penalty in question fails to prevent its recipient from reoffending himself, it may still have value pour encourager les autres -- though presumably only if instances of its being used are sufficiently well publicised. Most juvenile JCP cases in South Africa, however, appear not to have been reported in the press.

At all events the President of the Congress of Traditional Leaders, writing as recently as October 2004, was unequivocal:

Corporal punishment is a very effective deterrent against the commission of crime by youngsters [...] The outlawing by the constitution of corporal punishment is a source of concern and frustration for many rural traditional leaders. There is a perception of an increase in lack of respect for elders and authority on the part of the youth, who are quick to point out that the constitution forbids the imposition of corporal punishment. (6)

No less a figure than the deputy head of the national prosecution service has conceded that, since corporal punishment was abolished, more and more youth offenders return to the courts for a second and even a third time:

"Unfortunately, it is true that alternative sentences to corporal punishment do not work for all children. Community service is not a deterrent for the undisciplined, arrogant youth offender who shuns authority," said Jan Henning, deputy head of the national prosecuting authority, on Wednesday.

Henning said a "hiding" stood him and some friends in good stead when they were young. "Today we all hold responsible positions," he said.

Henning was reacting to the opinion expressed by some lawyers that the crisis of overpopulated prisons could be drastically relieved if South Africa, like Botswana, reintroduced corporal punishment for lesser offences. [...]

Henning agreed that young men under the age of 21, who was [sic] given a caning by an officer of the court, seldom returned to court.

However, he found corporal punishment for adult men cruel. He once witnessed a man fainting after the third cut.

"It wasn't a joke. I also witnessed youths being caned. I did not experience this as cruelty, but rather as a decent hiding," Henning said. (7)

This last point is borne out by an informant who was involved in meting out the punishments at a police station in the 1950s. He observed that of those who had received a juvenile caning, when asked about the point some time afterwards, none ever indicated that the fear of a repeat dose would keep him straight in the future. What many of them did say, though, was that the knowledge that, as second offenders, they might not get off with a caning, but be sent to prison or reformatory, would make them think twice about getting into trouble again. The informant noted that the juvenile version of the punishment, even before 1977 when it was applied to the bare seat, was not that terrible or much worse than what used to be a fairly standard school punishment, and that it would probably strike no more terror into a tough young juvenile delinquent than getting "six of the best" from the headmaster's cane would be to the average schoolboy. (5)


FOOTNOTES

(1) Verslag van de Komissie op Straf- en Gevangenishervorming [Report of the Commission on Penal and Prison Reform] ("Lansdown Report"), Government Printer, Pretoria, 1947.

(2) CA Lofriet, "Lyfstraf ingevolge Art. 292 Wet 51 van 1977" [Corporal punishment in terms of Article 292 of Act 51 of 1977], The Magistrate/Die Landdros, Johannesburg, Vol 19 No 1, January-March 1984.

(3) Verslag van die Kommissie van Ondersoek na die Strafstelsel van die Republiek van Suid-Afrika [Report of the Commission of Enquiry into the Penal System of the Republic of South Africa] ("Viljoen Report"), Government Printer, Pretoria, 1976.

(4) John Monhle Magolego in 1999, quoted in Antina von Schnitzler et al., Guardian or Gangster? Mapogo a Mathamaga: A case studyEXTERNAL LINK: opens in new window [PDF], Centre for the Study of Violence and Reconciliation, May 2001.

(5) Private correspondence with the present authors.

(6) Holomisa A! Dilizintaba, "Traditional justice helps instil respect for the rule of law", Business Day, Johannesburg, 6 October 2004.

(7) Sonja Carstens, "Prosecutor: Caning can work"EXTERNAL LINK: opens in new window, News24.com, 12 August 2004.


blob Next: Section 13: The abolition of JCP


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