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3: Historical background and legislative timeline
In the early days of the 17th-century Cape Colony, under the rule of the Dutch East India Company, corporal punishment was usually reserved for those convicted of petty misdemeanours. Even so, it was not uncommon for whippings of more than one hundred lashes to be administered, sometimes resulting in serious injury or even death (H Venter, Die Geskiedenis Van Die Suid Afrikaanse Gevangenisstelsel: 1652-1958 [History of the South African Prison System], 3 (1959).(1)
After 150 years of Dutch rule under Roman-Dutch law, Britain took power in the Cape in 1806, and the legal and judicial system began to take on a more English form. In the 19th century there were four separate jurisdictions: Cape Colony (aka Cape of Good Hope), Natal, Orange Free State, and the South African Republic (later Transvaal).
In 1910 these four colonies merged to form the Union of South Africa.
For the next few decades South Africa was in legal terms much like many other parts of the British Empire. But in 1948 the white-supremacist Afrikaner National Party unexpectedly won the general election (in which black people had no vote), heralding nearly half a century of hard-right racist rule. The Dutch-descended Afrikaners threw off the British yoke –- South Africa left the Commonwealth in 1961 and became a Republic –- and introduced a much more repressive and authoritarian regime, in which corporal punishment played a significant role. By 1970 South Africa had become a quasi-fascist police state.
Because of this, judicial corporal punishment came to be regarded by many anti-apartheid activists, and notably the African National Congress (ANC), as synonymous with the hated Afrikaner regime.
(In fact, this wasn't entirely true. As we shall see, some Africans themselves believed that JCP was often a more appropriate penalty than imprisonment. Nor should it be thought that CP was applied only to non-white offenders.)
It was no great surprise, then, that when universal suffrage at last arrived and the ANC came to power in 1994, the days of CP were numbered. JCP was finally abolished in 1997 (see Section 13).
"All free peoples outside the boundary posts or borders of the Cape territory and that of Stellenbosch, together with those settled at Drakenstein, or settled round about there with their livestock, should break up their camps as quickly as possible within the next six months, and by this day have settled themselves within the proper limits with goods and chattels, on pain of corporal punishment as deserters and vagrants, and their house, herds and cattle pens subject to confiscation at their own expense".
The Kimberley diamond mines in 1873. From G.F. Williams, The Diamond Mines of South Africa, New York, 1906.
In the same year, the courts in the Cape condemned the practice of deferring a whipping until part of the prison sentence had been served and inflicting it in instalments: R v Nortje  1 EDC 231.
However, in 1917 the criminal codes of the four separate colonies were repealed, and uniformity was achieved throughout the new Union of South Africa (created in 1910). The 1917 Criminal Procedure and Evidence Act restricted all courts from imposing more than fifteen strokes.
At the same time the number of strokes which could be imposed by Magistrates was reduced from fifteen to ten.
In the same Act the Magistrates' power to award the cat-o'-nine tails was removed -- only the cane could be used. Use of the cat was thus restricted to the Supreme Court.
It proposed that the maximum number of strokes should be reduced to eight for adults and five for juveniles, and that no person should be whipped on more than two occasions, or not at all if there was evidence that it might cause serious physical or psychological harm (unofficial translation from Afrikaans):
"As regards the number of strokes, although the maximum a magistrate can order is 10 strokes, evidence shows that after six strokes, in the case of a child, and eight, in the case of an adult, the seat becomes numb, so that further strokes are ineffective [...] (para. 490).(9)
The report also noted that the lash (cat) was rarely ordered, and urged that it be abolished altogether.
However, the Commission's recommendations fell on stony ground, because a dramatic change of government occurred in 1948.
As another commentator has put it, under this legislation "the courts were compelled to embark on an orgy of whipping".(1)
The new law came into effect on 16 May 1952 and led immediately to a huge increase in the use of judicial CP.
In the twenty years between 1942 and 1962, about 1,000,000 strokes were administered to 180,000 offenders; and 850,000 of these strokes were administered after the 1952 Act was passed. (Statistics: see Section 10.)
In the year ended 30 June 1963, a total of 17,404 offenders received 83,206 strokes, and in the following year 16,887 offenders received 79,038 strokes, according to figures given in the House of Assembly by the Minister of Justice. The comparable figures for 1942 were 2,000 offenders receiving 12,000 strokes.(11)
Although the number of whippings increased eightfold in two decades, this had no apparent effect on the overall crime rate, which continued to rise faster than the increase in population. However, this is partly because the regime kept inventing new offences, especially those associated with its strange theories of racial segregation –- and with the political opposition thereto.
Section 2 provided that persons advising, encouraging, inciting, or assisting, or using language or doing acts calculated to cause persons to commit offences by way of protest against a law or in support of a campaign for the repeal of any law, could likewise be sentenced to a 500-pound fine, a five-year gaol sentence and/or 15 strokes. Imprisonment and whipping were to be imposed automatically for second and subsequent offences.(12)
"subject to ss.355, 342, 344(2) and 346 (and s.345 of the Prisons Act) any person other than a person above the age of fifty years convicted of any offence mentioned in Part II of the Third Schedule shall be sentenced to a whipping of not exceeding 10 strokes with or without imprisonment with hard labour" [emphasis added].
Subsection (b) provided that the Minister could add to the offences in the Schedule, on a resolution of both Houses of Parliament.
In 1955, for the first time, an upper age limit for the corporal punishment of men convicted of crimes (as opposed to offences against prison discipline) was fixed at 60.
The number of caning sentences fell sharply as a result.
It also suggested that the maximum number of strokes be limited to five, that no offender should be whipped on more than two occasions, that it should be imposed only for offences involving violence or the defiance of lawful authority, that adult offenders over the age of 30 should be exempt, and that juveniles should be caned on the clothed buttocks.
The report noted a submission from the South African Prisons Service that it "strongly opposed" attempts to reduce the maximum age limit of 50 for corporal punishment of prisoners for contravening prison rules. The memorandum claimed that serious problems were caused by the aggressiveness and stubbornness of prisoners older than 30 years which could only be deterred by corporal punishment -- in short, prison discipline could be effectively maintained only by thrashing prisoners as old as 50 years. However, Viljoen recommended reducing this maximum age for prison caning to 40.
- adult offenders could not be whipped more than two times, or within a period of three years from the last occasion on which they were sentenced to a whipping — s.292(3) (no such restriction applied to juveniles);
- juvenile whippings had henceforth to be inflicted "over the buttocks which must be covered with normal attire" and not, as previously, on the bare buttocks (adults, however, continued to be caned over their bare buttocks);
- females and all adults over the age of thirty were exempt – s.295(1);
- the maximum number of strokes for all courts was reduced to seven (not five, as recommended by Viljoen) – s.292(2);
- the whipping might be imposed in addition to or as a substitute for any other punishment to which the offender might otherwise be sentenced – s.292(1);
- the instrument was a cane only – s.292(2);
- whippings of adults could be imposed only for robbery, rape, breaking and entering, theft of motor vehicles, receiving stolen property, gross indecency between males, attempts to commit the above crimes, culpable homicide, or statutory offences which imposed the punishment – s.293;
- whippings ordered by a Magistrates Court, other than juvenile whippings, were subject in the ordinary course to review by a judge – s.302(1)(a)(iii);
- such whippings should not be inflicted until the review was completed – s.308;
- persons subject to a whipping but not imprisonment, if not given bail, had to be held in custody until completion of the review –- s.308(2);
- whippings could not be imposed where the conviction resulted from certain psychological conditions of the offender –- s.295(2).
However, by virtue of s.36(7) of the Prisons Act, where corporal punishment had been ordered in more than one sentence passed at or at approximately the same time on the same person, that punishment was required to be inflicted at one and the same time and the number of strokes could total ten -- the remainder of the strokes, if any, were to lapse.
In a further amendment to s.293, the number and type of offences for which an offender might be sentenced to an adult whipping was extended to include sedition, arson, public violence and malicious damage to property, although bestiality and homosexual acts were removed from the list. The stage was thus set for an increase in court-imposed whippings in retaliation for political activity. The new list of corporally punishable offences was intended to deal with offences against public order in the ongoing climate of political unrest.
In Whippings: The Courts, the Legislature and the Unrest (South African Journal of Human Rights, 1985), Angela Roberts and Julia Sloth-Nielsen observed that it was
"difficult to understand how offenders involved in unrest-related actions would distinguish between the informal use of physical violence currently employed by the police, using quirts, truncheons and sjamboks, and the formalised physical pain that will now be meted out to them by the courts".
The Court found that the provisions of s.294 of the Act (the "juvenile" whipping clauses) violated the Constitution and should be struck down. (see Section 13, The abolition of JCP.)
This landmark case thus brought about the end of judicial corporal punishment for juveniles in South Africa -- although it took some months for the decision to percolate down to all local courts.(14)
(1) James O. Midgley, "Corporal Punishment and Penal Policy", 1982 J. Crim. L. & Criminology Vol. 73 No 1.
(3) Jouni Maho, Select Chronology of South African Legislation, Göteborg University, 1997-2002.
(5) John Dugard, South African Criminal Law & Procedure, Juta, Cape Town, 1977, p.253.
(6) 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.
(7) Leonard Thompson, A History of South Africa, Yale University Press, 1990, p.118.
(8) Ellison Khan, "Crime and Punishment 1910-1960", in Acta Juridica 1960, Cape Town, 1961.
(9) Verslag van de Kommissie op Straf- en Gevangenishervorming [Report of the Commission on Penal and Prison Reform] ("Lansdown Report"), Government Printer, Pretoria, 1947.
(10) R.F. Ascham, "The Whipping Act", 1954 SALJ Vol. LXXI, p.145 ff.
(12) Eileen Riley, Major Political Events in South Africa, Facts on File, Oxford and New York, 1991, p.36.
(13) Paul B Rich, State Power and Black Politics in South Africa 1912-1951, Macmillan, Basingstoke, 1996.
(14) "Child whipping hasn't stopped", Mail & Guardian, Johannesburg, 25 August 1995.
Next: Section 4: Corporal punishment of "juveniles"
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