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www.corpun.com :  Features :  South Africa judicial page 8

JUDICIAL CORPORAL PUNISHMENT IN SOUTH AFRICA

Section 9



CONTENTS

On this page:

9. Interesting cases (juvenile)

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)

10. Statistics

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

12. The deterrent effect of corporal punishment

13. The abolition of JCP


9: THE CORPORAL PUNISHMENT OF JUVENILES – some interesting cases

S v Khulu [1975] 1 SA 518 concerned an investigation into the true age of the prisoner to determine whether or not he was a juvenile, and thus eligible to be given cuts. It appears that his age was uncertain. He had been convicted of dealing in 30 grams of dagga (cannabis) and was sentenced to 10 years imprisonment. He had 2 previous convictions, in 1974, and for each of these he had been sentenced to juvenile cuts. He had also been convicted in 1972 of an unrelated offence, for which he had also been caned. His age was assessed by a surgeon upon "general grounds of his general appearance and examination of his teeth, hair and genitals". Following this examination, the sentence was set aside.

In R v Wilson (11 June 1923) a native male aged 16 was convicted of an offence against the Masters and Servants Act 1880 by desertion. He was sentenced to 8 cuts to be administered by the court sergeant. The sentence was inflicted. The court on appeal found this was illegal, and "all we can do is quash it". At this stage (before 1935) the recipient of juvenile CP had to be under 16.

In R v Jacob (9 March 1925) a boy of 15, convicted of theft, with 2 previous convictions, was awarded 8 cuts, and 3 years detention. The cuts were inflicted. On appeal the court found that there was no jurisdiction to have awarded them. The sentence of detention was set aside.

In S v Kantor [1974] 4 SA 683 (Orange Free State), a European boy of 16 stole a tape recorder and cassettes to the value of R213. The magistrate obtained a probation report and it was noted that the "defendant's counsel asked for corporal punishment" and put the blame on the co-accused. He was sentenced to receive eight strokes with a light cane.

The case was attended by his parents. On appeal, the sentence was reduced to 6 strokes, the court holding that 8 was appropriate only in extraordinary cases.

In S v M [1979] 4 SA 564, a Bophutatswana case, two 13-year-olds had been convicted of housebreaking and theft. The first was sentenced to 6 strokes plus reform School. His mother said: "He is a very naughty boy".

The second defendant was sent to reform school. On appeal, these punishments were confirmed.

Newspaper reports from local courts in the 1970s and 1980s -- in the minority of cases where such proceedings were covered by the press at all -- give an impression of the normal everyday use of juvenile cuts:

- In 1973 a 19-year-old charged with possessing drugs told the court he could not give it up. He asked to be sent for treatment. The magistrate sent him for immediate treatment, but perhaps not of the kind the boy had in mind. The magistrate told him "Go and see the sergeant. He will give you five cuts." ("Dagga: Youth gets cuts", Natal Mercury, 24 August 1973.)

- At Alexandra in August 1976 a boy of 15 was awarded five cuts with a light cane for taking part in an anti-police riot. The adults with whom he was charged were sent to prison. ("Alexandra rioting -- five sentenced", Rand Daily Mail, 3 August 1976.)

- Two days later at Krugersdorp, an 18-year-old was ordered to receive eight strokes of the cane for fraudulently altering the date on his car registration. ("Fraud youth to get cuts", Rand Daily Mail, 6 August 1976.)

- At Pretoria in April 1980 a university student, Harry Wilson, 20, was sentenced to five cuts for a bomb scare prank. The magistrate stated that he was taking into account Wilson's clean record and the adverse effect a prison term would have on him. ("5 cuts for bomb scare joker", Rand Daily Mail, 24 April 1980.)

- In June 1980 at Cape Town, four coloured youths between the ages of 15 and 17 were each sentenced to seven cuts. They had been involved in throwing stones and setting up roadblocks during a political protest. Two co-accused aged 18 and 30 were jailed. ("Cape man jailed for inciting violence", Rand Daily Mail, 19 June 1980.)

- In October 1981 the Pretoria Magistrates Court heard that Jacobus Kotze (20) had broken into a workshop and stolen R250. He pleaded guilty to housebreaking and theft. He gave Marcus Oliver (19) R150 so that he would not tell anyone about the crime. Kotze was awarded seven cuts with a light cane. He had previous convictions for theft. Oliver, a first offender, was ordered four cuts on the theft charge. ("Theft: Youths Get Cuts", Pretoria News, 12 October 1981.)

- In January 1985 at Paarl, five teenage boys were each sentenced to seven strokes for looting. They had stolen two casks of wine and 10 bottles of beer from a township beer hall. ("Cuts for looting", East London Daily Dispatch, 24 January 1985.)

ROBBERY

In S v Khotla, S v Chitja [1979] 4 SA 925, the two accused were indicted for robbery. A knife was used. Both offenders were over 18 years. They were convicted, and each sentenced to two years. One, Khotla, appealed against his sentence.

The Transvaal Provincial Division Court quashed the sentence, as the defendant was only 19, and instead he was sentenced to "[...] six strokes with a juvenile cane to be inflicted in private in the presence of his parents by the Sergeant of Police at the charge office and 6 months suspended for 3 years". He was later given this punishment. In relation to Chitja, the court said that the "young man must count himself fortunate" that he got 6 strokes.

DRUGS

In S v Paile [1979] 1 SA 769 (T) the court set aside the lower court's sentence of a term at reform school for selling cannabis. Six strokes of juvenile whipping were ordered instead, plus probation.

TRAFFIC OFFENCES

In R v M and Others [1958] 3 SA 681 the first accused, 'M', a white apprentice electrician, aged 17 years and 9 months, had lost his licence for 12 months due to a disability which made it unsafe for him to drive, but he nevertheless drove a vehicle and only six days later was involved in a crash.

He was charged with negligent driving, for which he received a fine and a licence suspension for 5 years, and secondly with driving under suspension, for which he was given "6 cuts with the cane to be administered by the head warder of the prison in private".

The second accused, 'T', also a European, aged 16 years and 2 months, had left school. He stole a watch at the swimming baths. For this he was sentenced to receive "a moderate correction of 6 strokes with a light cane to by administered by a prison warder".

The third accused, 'F', an African, aged 17 years, was convicted of 3 housebreaks. He was given 3 months suspended and 6 cuts with a light cane.

The magistrate had remarked "In many such a case the accused's youth warrants a short and sharp expiation of one of his offences by way of whipping".

All sentences were confirmed on appeal by the Supreme Court (despite the apparently incorrect form in which at least one of them was given, mentioning infliction in prison rather than by the police).

The judge held, in relation to the first accused, that in imposing whipping rather than imprisonment, the magistrate was acting humanely, and the sentence was confirmed.

For the second accused, the judge observed that the offence was a "typically juvenile offence" for which a moderate whipping was appropriate and the sentence was confirmed.

In the case of the third accused, the judge amended the sentence to six strokes plus one month's imprisonment.

S v Hatting [1972] 3 SA 843 was another traffic case. Hatting, a white 16-year-old, was charged with driving under the influence and without a licence. He was convicted on 17 February 1972 on both counts and sentenced to five cuts with the cane pursuant to s.345 of the Criminal Procedure Act and disqualification from driving for 6 months on the first charge. Sentence on the second charge was postponed. On appeal, it was held that the sentence was lawful and that it was a serious offence.

The court referred to S v Porter [1964] 2 PH 193, where it had been held that a sentence of four cuts was not suitable for a 17-year-old found guilty of reckless driving, and R v Risaba, in which similar observations had been made where a 20-year-old was awarded 7 cuts for the same offence. Nevertheless the Judge noted that "a moderate whipping of 5 cuts with a light cane on a youth of 16 is in my opinion neither undesirable nor excessive, although unusual for traffic offences. There is no good reason to interfere with the sentence".

However in three subsequent cases such sentences were regarded as inappropriate:

In S v C [1973] 1 SA 739, a student from the University of Stellenbosch, aged 17, had been charged with having driven a vehicle under influence of liquor and without a licence. He pleaded guilty to both counts and was convicted.

The defendant's father gave evidence that he had made satisfactory progress at university, he never drank to excess, he came home at the weekend, and had a good father/son relationship. The defendant was much "shaken up" by his experience and felt very guilty for the anxiety and expense he had caused his family. The magistrate had concluded:

"The appellant was a real danger to himself and other road users and a sentence in terms of s.345 was called for. In any case, the Court felt that if the manner in which the defendant drove was taken into consideration, a whipping of six strokes was not really sufficient, and it is for that reason and also to really bring home to the defendant the seriousness of the offence that he was disqualified from driving for a considerable period. The court could possibly have imposed a fine, but in view of the fact that the defendant is still a student and only 17 years old, decided against it".

He imposed a sentence of "Six cuts with a light cane, in terms of section 147 of the Ordinance and disqualified for 2 years from driving." On count two he was cautioned and discharged.

The imposition of the cuts was suspended pending appeal. The appeal court received a letter from his mother. She feared that the sentence might leave a psychological mark on her son and might affect his university career. She went on:

"S is only 17. During all his years we have never had any complaints from the school. He was a good sportsman and scholar and was also a prefect. He has already endured mental punishment because we do not believe that people who do wrong should escape punishment. We have not viewed the matter lightly. His allowance has been reduced. Part of his vacation earnings must be paid to us. We have been put to great expense in indemnifying the car owners and paying legal expenses -- which we can ill afford".

"Having the physical punishment as a potential threat over my son's head [surely "backside"? - C.F.] causes us deep anguish, as we both know that there was neither criminal intent nor any malicious thought in him before or during his dreadful drunkenness. In my anguish I appeal, if it is at all possible for you to do so, for you to make such recommendations to the Supreme Court as your clemency dictates”.

On review, the Judge held that:

"At first blush the sentence imposed seems unusual. He is a first year student. On 12th September his class wrote their exams. Afterwards they 'celebrated' in a hotel with a 'drinking game'. The defendant 'lost' and was drunk -– 'pretty drunk'. Constable Roos saw his car on the wrong side in Dorp street, Stellenbosch. The lights were off. There was a near collision. The defendant was arrested. He fell asleep in the back of the police car. His conduct was 'baie opoerig'. His landlady said that he was the 'best behaved student I ever had'. The facts all point to the fact that the violent corrective impact of a judicial whipping may not be the appropriate punishment. But I also feel that the Magistrate had inadequate data before him upon which to decide that this punishment, which for a youth from this home could be a most severe punishment, would probably have a corrective rather than a destructive effect. When I say most severe punishment I refer to the fact that it is likely that the accused lives in a milieu where violence is surely the exception not the rule: that to subject him to the indignity and the physical and mental anguish which is the inevitable concomitant of a judicial whipping, can in such a person, if he is a sensitive young man, be a sentence out of proportion to his moral blameworthiness. I do not propose to deal with the dispute as to whether a whipping is an appropriate sentence to be imposed for "traffic offences" -- see S v Hatting -- or whether it is not -- see in this regard, however, S v Porter [1964] (2) PH H 193 (C) and S v Risaba [1971] 2 SA 339 (T)."

The Judge postponed sentence for 12 months. He said

"I release the defendant on condition that he report to Victoria Hospital, Wynburg by no later than Monday 18 December 1972, and for two weeks thereafter, perform such duties as the Superintendent may advise. Otherwise the sentence is confirmed, including the licence disqualification for 2 years".

In S v C [1974] 2 SA 680 the Cape Provincial Division of the Supreme Court ruled that a caning sentence imposed on a youth convicted of driving a motor vehicle without a licence while under the influence of alcohol was "startlingly inappropriate".

In S v Le Roux (11 March 1982), Orange Free State, a 19-year-old first offender was sentenced to three cuts of the cane for driving with excess noise, contrary to Traffic Ordinance 21/66. On review, the sentence was amended to 15 days' imprisonment suspended, and removal of licence for 2 months.

RAPE

The Lansdown Commission report noted, as an example of where juvenile JCP was useful, a case (date and name not stated) in which five white scholars who came from "good homes" had gang-raped a young black girl. In order not to ruin their careers and spoil their lives by sending them to jail, the boys were "punished by a sound caning" (para 488).(1)

MASS CANINGS

S v Gcolotela and Others [1961] 4 SA 530 involved the imposition by the court of canings on a large number of juveniles following a school disturbance. A large number of scholars at St John's College, Umtata, had held a meeting on 7 June 1961 to complain of "the soap, raw porridge, and difficulty in obtaining postage stamps at the College". At 7 p.m. a small mob gathered, and on 8 June in the afternoon a Master was besieged, stones were thrown, and windows broken, etc. 30 to 40 students were involved. They were charged before the court under s.3(7) 400/1960. Those aged 14 were each sentenced to 4 cuts with a juvenile cane, those aged 15 or 16 to 6 cuts, and those aged 17 to 8 cuts. Those over 18 were each fined R30 or 30 days. The sentences in all cases were confirmed.

S v Tsatsi [1975] 3 SA 390 (Transvaal) was another "mass caning" case. It involved over 100 scholars of the Nchaupe High School, Moretele District, who were charged with public violence. The majority pleaded guilty.

Numbers 3, 16, 46, 85, 117 and 124 were found not guilty. Three others had previous convictions. The court found that complaints leading to the riot were well founded, as there had been poor conditions at the school.

Offenders numbers 4-15, 17-19, 22-31, 34-40, 42-43, 45, 47, 49, 51, 53-56, 58-60, 64, 65, 67, 68, 69, 70, 71-78, 81-84, 86, 87, 89, 90, 91, 97-103, 105, 107, 109-111, 113, 114, 119, 120, 121 and 125 were sentenced to

"'n matige lyfstraf van ses houe elk ingevolge art. 345 van die strafprosecut wat in privaat toegedien moet word deur 'n bantoekonslotel in die SA Polisiselle Hammerskvaal, met 'n ligte rottang".

("a moderate whipping of six strokes each, in terms of Section 345 of the Criminal Procedure Act, to be administered in private by a Black constable in the Police Cells, Hammanskraal, with a light cane".)

The remaining culprits, all aged over 21, were sentenced to 120 days in prison.

S v N [1980] 3 SA 529 (Transkei S Ct) was another mass caning case. It also involved girls who were sentenced to the cane, Transkei being one of the notionally independent "homelands" which had amended its own local laws to make this possible.

The accused were all scholars -- male and female -- at Victor Poto Senior Secondary School in Libode. They appeared before the magistrate on a charge of contravening s.7(b) of the Riotous Assemblies Act 17/56 by maliciously damaging a motor vehicle and setting it on fire. The attack was upon the principal's car, and R1000 damage was caused.

Over 60 students were found guilty. Each accused found guilty was ordered to pay R15 compensation within 30 days. They were also sentenced to receive a juvenile whipping, the girls each receiving four cuts and the boys five. As the students were sitting their exams, all the canings were carried out immediately.

On review before Munnik CJ, an error was found in relation to five of the offenders, as they were over 21 and instead of cuts they should have been given a fine. However, the corporal punishments had already been administered.


FOOTNOTES

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


blob Next: Section 10: Statistics


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