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JUDICIAL CORPORAL PUNISHMENT IN SOUTH AFRICA

Section 5



CONTENTS

On this page:

5. "Prison discipline" canings

On other pages:

1. Introduction

2. Implements and terminology

3. Historical background and legislative timeline

4. Corporal punishment of "juveniles"

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


5: "PRISON DISCIPLINE" CANINGS

Corporal punishment was long in use in South Africa as a sentence for disobedience by prisoners of prison rules. A former South African Judge-President, V.G. Hiemstra, described the rules that prisoners had to observe as a "bewildering system" calculated to make delinquents feel like social outcasts.(1)

Act 13 of 1911 empowered prison governors to order a punishment of six cuts if the prisoner was a male apparently under the age of 60 years, and magistrates to order twelve cuts in the same circumstances. This age limit was later reduced to 50 and eventually to 40.

Examples of offences against prison discipline included talking, being in possession of food at any time, allowing dust to be found in a cell, and being disrespectful towards a warder. Despite the pettiness of such rules, the punishments could be quite severe.

All prisoners, whether convicted or not, were subject to the prison disciplinary regime. Accordingly, prisoners presumed innocent and awaiting trial were subject to the same punishments for infringements of prison discipline as were sentenced prisoners.(2)

A large number of specific disciplinary contraventions were listed in the Prisons Regulations.

Specific contraventions were committed by any prisoner who:

- wilfully gave false replies to questions, put to him by a member or other person employed in a prison;

- disobeyed a lawful command or order by a member or temporary warder or ignored any regulation or order;

- was insolent or disrespectful towards a member or any other person employed in a prison or towards an official or any other visitor to a prison;

- was idle, careless or negligent in his work or refused to work;

- swore or made use of slanderous, insulting, obscene, threatening or other improper language;

- conducted himself indecently by word, act or gesture;

- committed any petty assault;

- conversed or communicated in any other manner with another person at a time or place when he was not permitted to do so;

- sang, whistled or made unnecessary noise or caused unnecessary trouble or was a nuisance;

- without permission left his cell or place of work or any other place to which he was assigned;

- in any manner disfigured or damaged any part of the prison or any article in it or any other state property;

- had in his cell or possession any unauthorised article or attempted to obtain any such article or commit a petty theft; without permission received from or gave to any person any article or obtained possession of it in any other manner;

- caused discontent, agitation or insubordination among his fellow-prisoners or participated in any conspiracy;

- lodged false, frivolous or malicious complaints;

- made false and malicious accusations against a member, a fellow-prisoner or other person;

- in any manner shirked work,

- wilfully lost, destroyed, altered, defaced or bartered an identification card, document or other article issued to him;

- committed an act with the intention of endangering his life, injuring his health or hampering his work or otherwise conducted himself to the prejudice of good order and discipline;

- in any manner acted contrary to good order and discipline;

- attempted to commit any of the aforementioned acts or incited or instigated or commanded or procured a member or temporary warder or other person or another prisoner to commit any such act.

Commissioned officers generally, or specifically, deputed by the Commissioner had the jurisdiction to try any prisoner for the contravention of any such Prison Regulations. They had the jurisdiction to impose upon conviction a reprimand, the deprivation of one or more meals on any one day, or corporal punishment not exceeding six strokes, provided that the prisoner was a convicted male prisoner apparently under the age of 40 years.

On review, the Prison Commissioner could confirm, set aside or alter the sentence.

No appeal lay against a sentence imposed by an officer's court on a prisoner (Reg 99(5)).

Such trials would usually take place in a courtroom in the prison itself. Only the more serious offences which were also crimes under legislation not concerned specifically with offences in prison would be tried in a court outside the prison. The prisoner had a right to legal representation in either case; however, almost no prisoners in fact had legal assistance if they were charged with further offences (80 to 90 percent of those charged with criminal offences outside prison were unrepresented at trial).

Port Elizabeth prisonThe prison at Port Elizabeth (from Prison Administration in South Africa, S.A. Prisons Department)



The Prisons Act No 8 of 1959 provided in Section 56(1) that a sentence of corporal punishment imposed by an officer’s court was not reviewable by the Supreme Court, nor was there any appeal (section 56(4)), but the Commissioner could request that the record be transmitted to him for review (section 56(5)). On review, the Commissioner could confirm, set aside, or alter the sentence (section 56(5)).

These punishments were governed by Prison Regulation No. 100, part of which read as follows:

"(1) Subject to [other provisions] corporal punishment shall not be inflicted [...] [before the period for an appeal] [...] unless the convicted person has indicated in writing that he has no intention of noting an appeal, and he agrees that corporal punishment may be inflicted before the expiry of the said appeal ...

(2) A member of the prison service must be present at the infliction of corporal punishment and must enter the date thereof on the relevant warrant, giving details of any order which the medical officer may present to prevent injury to health, and must fulfil any further instructions laid down whether specific or general in connection with the infliction of corporal punishment.

(3) Corporal punishment shall be inflicted with a cane across the buttocks in the manner prescribed.

(4) A cane used for inflicting corporal punishment -

(a) on an adult prisoner, shall be approximately 125 centimetres in length and 12 millimetres in diameter;

(b) on a juvenile prisoner, shall be approximately 1 metre in length and nine millimetres in diameter.

Where the medical officer found that the prisoner was not in a fit state to undergo the punishment, or if he found during the course of the infliction that he had become unfit, the doctor had to certify this in writing. The certificate was transmitted to the Commissioner, who reported the matter to the Court, which could then either remit the sentence or substitute another penalty.

There are many recorded cases relating to the imposition of corporal punishment for prison disciplinary offences.

In R v Jan [1908] TCSR 179 a prisoner was convicted of a breach of Regulation 518 s.13 in making the threat "if you come into the yard I will kill you". He was of previous character, having had 61 convictions, and was sentenced to 7 days solitary confinement, punishment diet, and 12 lashes.

In R v Paulus [1932] TPD 249 (Transvaal) the defendant, a convicted prisoner in gaol, struck the Head Warder with his fist. He had 17 sentences in gaol for fighting, insolence, and other breaches of regulations. In each case he had been given solitary confinement and spare diet. In May 1923 he assaulted and stabbed a native with a knife. He pleaded guilty and was awarded 6 months and 10 strokes. The Judge on appeal wrote:

"A sentence of 10 lashes is a very severe one. The Magistrate has jurisdiction up to 15 lashes. But we know the effect of lashes. We know that when a man has received up to 8 or 10 lashes, very often his sense of feeling becomes numb. It very much depends, of course, on the person who inflicts the lashes, and the manner in which they are inflicted. I do feel that a sentence of ten lashes is unnecessarily severe. Five lashes are quite sufficient to visit the corrective effect of this kind of punishment on him."

R v Kumalo [1951] 1 SA 451 concerned the Farm Colonies Regulations. The prisoner, an inmate of Leeuwkop Farm Colony, contravened Regulation 421(1)(8) in a minor assault on a fellow inmate. He hit him in the face with his fist and stabbed him in the buttock with a spoon. He pleaded guilty and was sentenced to receive 6 strokes with a cane and to forfeit 90 good conduct marks.

Regulation 36 enabled punishment of offences in the Colony by means of corporal punishment of not more than 12 strokes, and Regulation 135 provided for corporal punishment of not greater than 6 strokes, if the prisoner was a convict male under 60 years.

washroom at Leeuwkop prison

R v Maphumulo [1960] 2 SA 793 considered the punishment of 43 prisoners who had refused to perform their prison duties in contravention of Prison Regulation 99(1) (Govt. Gazette 6375). They were inmates of Durban Central Prison detained under the pass laws. On 28 August 1959 they refused to work after being ordered to do so. Each pleaded guilty. 41 were sentenced to receive 5 strokes with a cane and 2 were sentenced to 7 days solitary of which 6 were to be on spare diet. They contended that they could not be forced to work under Reg. 4 as they were held for examination only. On review, the court held that defendants 2 and 7 were to receive 3 days solitary confinement, suspended for 6 weeks. In relation to the other defendants (who had been awarded whippings) and whose ages ranged from under 21 (the majority) to 40, all sentences were altered to 3 strokes, suspended for 6 weeks. The court said that if they further breached their obligation to perform labour they would get the strokes, but otherwise not.

S v Kruger [1963] 3 SA 43 (Orange) dealt with the case of a prisoner who was awarded 6 cuts for refusal to put out a cigarette. The sentence was confirmed.

In S v Abrahams [1966] (2) SA (Cape) a charge of sodomy attracted a sentence of six cuts, which was confirmed on review.

In the 1970s the amount of prison corporal punishment was reduced considerably. In the year ended 30 June 1976 there were 2,251 whippings (609 of juveniles and 1,642 of adults), of which 331 were for prison discipline and 442 were court sentences of whipping without imprisonment. 1,478 were court sentences of corporal punishment combined with a prison term.

In S v Mbele [1974] 1 SA 705, a 26-year-old prisoner convicted of a petty assault on a fellow prisoner was sentenced to receive "6 strokes with a heavy cane". The sentence was set aside.

In S v Williams [1978] 1 SA 1177 (Cape), a prisoner aged 31 had been sentenced by a correctional officer under s.54 of the Prisons Act 8/59 to receive 6 cuts for a serious assault on another prisoner. The court examined corporal punishment in detail in its decision. It found that Act 51/77 provided that no person over 30 could be sentenced by a court to whipping. The conviction was confirmed but the sentence was accordingly set aside.

However, this finding was repudiated in S v De Kock [1979] 3 SA 806 (Orange). A white prisoner at Greens Point Prison was convicted of the prison offence of "impertinence and unrespectful conduct" towards an officer. He was awarded 6 cuts despite the sentencing officer's request to have the sentence suspended in full. On review, the punishment was confirmed. The court found that an officers’ court had no jurisdiction to suspend a sentence of corporal punishment (Prisons Act 8/59). The judge in this case disagreed with the decision in S v Williams (see above), which, he said, "loses sight of the fact that in terms of s.54(2)(d) of the Prisons Act express provision is made for the imposition of corporal punishment up to the age of 40 years". He held that Act 51/77, with its reference to an age limit of 30, did not apply to prison discipline CP.

weighing a prisoner on admittance

In S v Saayman [1987] (2) SA 504 (Cape) a prisoner was sentenced to cuts for mutilating his prison identity card by writing on it and for failing to remove a duster, which he had worn as a scarf, promptly enough on being ordered to do so.

In S v November [1988] 1 SA 661 (Cape), two prisoners were sentenced to receive 6 cuts each for failing to affix their fingerprints in a register reflecting the particulars of prisoners who had been subjected to rectal examinations in search of "illegal articles". The reviewing court questioned the legality of the command to affix the fingerprints in the register but the conviction was confirmed.

In S v Dlakiya [1988] (1) SA 574 (Transvaal) a 31-year-old prisoner was convicted of a petty assault and sentenced to six cuts. The court questioned the disparity in maximum age limits for corporal punishment –- if it had been a non-prison offence the prisoner would have been too old for the cane -- but pointed out that only the legislature could amend it. The court amended the sentence by replacing it with three cuts.

As a result of court supervision which severely restricted its application, prison corporal punishment was little used in this era. The figures are shown in the table below:(3)

Year Deprivation of meals on any given day Corporal Punishment
(up to six lashes)
1989 35,805 120
1990 32,963 102
1991 27,930  44
1992 29,063  41

The power to inflict corporal punishment for prison disciplinary offences was legally removed with the 23 June 1993 amendment to the Correctional Services Act. The amendments did not come into effect until March 1994, and the punishments to be abolished were still being applied at the end of 1993.(4)

The amendments brought South Africa into line with UN Standard Minimum Rules: "Corporal punishment, punishment by placing in a dark cell, and all cruel, inhuman or degrading punishments shall be completely prohibited as punishments for disciplinary offences."


FOOTNOTES

(1) Penal Reform News Newsletter No 49, October 1959, cited in János Mihálik, "The Taming of the Bad, or Unspeakable Cruelty – Prison Disciplinary Offences", 1989 SALJ 330.

(2) D van Zyl Smit, Laws of South Africa, Butterworths, note 9 114n3, cited in Mihálik, op. cit.

(3) SA Barometer, Volume 6, Number 19, 25 September 1992, and SA Conflict Monitor (Johannesburg), March 1993, quoting statistics given by the Minister of Correctional Services to Parliament.

(4) South African Prisons: Disciplinary Measures, Human Rights Watch, 8 February 1994, ISBN 1-56432-126-6.


blob Next: Section 6: What canings of adults involved


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