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ABSTRACT
In 1995, South Africa’s Constitutional Court banned judicial corporal punishment of juveniles and soon thereafter legislation ended it for adults as well, marking an end to a practice that had been widespread since colonial times. During the apartheid period there was first a sharp rise in the use of judicial corporal punishment, contra the recommendations of the 1947 Landsdown Commission, and then a gradual decline after 1965, when legislation restored judicial discretion in cases where whipping had been mandatory since the early 1950s. The 1976 Viljoen Commission recommended a number of reforms, partially implemented in subsequent legislation, but continued to endorse the practice for young males. Using court cases, parliamentary debates and the commission reports, this article explores the motivations for redirecting and somewhat restraining apartheid’s whip hand at the height of the system of white supremacy, in the 1960s, and following the 1976 reappearance of a widespread popular challenge spearheaded by youth. Official discussions indicate a tension between aspiring to meet the standards of what South African elites called ‘civilised’ countries and recognition of the state’s need to enforce masculine discipline in what they termed South Africa’s ‘special’ situation of white rule over a black majority termed ‘primitive’. This article will explore the ambivalent reformist tendencies of the apartheid state at its height, while also analysing the gendered and generational hierarchies and tensions inherent in the application of this form of punishment exclusively to boys and young men.
Acknowledgements
I am indebted to Anri Delport for assistance in obtaining archival material. My thanks also to Clifton Crais, Jessica Hower and Meredith McKittrick for very helpful comments. I also benefitted from comments when I presented earlier versions to the Southern African Historical Society’s biennial conference and the African Studies Association annual meeting, both in 2015. I gratefully acknowledge research funding from Southwestern University.
Note on Contributor
Thomas McClendon is an emeritus professor of History at Southwestern University in Georgetown, Texas. His research has focused on colonialism and its settler-state variant, law, labour, and gender and generation, primarily in KwaZulu-Natal. He is co-editor (with Clifton Crais) of The South Africa Reader: History, Culture, Politics.
Notes
1 Debates of the South African National Assembly (Hansard) (1977: col 4425).
2 1995 (3) SA 632 (Williams).
3 Judicial corporal punishment was carried out with a ‘heavy’ cane for those over 21 and a ‘light’ cane for those under that age.
4 33 of 1997.
5 For a particularly brutal example from the archives, see Theophilus Shepstone’s (5 June 1867) memorandum describing a complaint that a whipping by a magistrate (for failure to deliver a letter) had resulted in the death of one of the four men flogged (Pietermaritzburg Archives Repository (PAR) SNA 1/7/5); see also Shepstone’s (19 February 1859) letter to the Natal Mercury editor concerning a flogging sentence for African women convicted of cattle stealing (PAR SNA 1/1/9).
6 Between the ruling in Williams and the Abolition of Corporal Punishment Act, the South African Schools Act (84 of 1996) made corporal punishment illegal in schools. Justice Sachs, writing for the Constitutional Court, upheld the ban on corporal punishment in schools against a challenge based on freedom of religion in Christian Education South Africa v Minister of Education 2000 (4) SA 757. However, Robert Morrell (Citation2001b) found corporal punishment still widely practised in state schools. The Correctional Services Second Amendment Act (79 of 1970 banned the use of whipping in prisons. Under common law, it remains legal to use corporal punishment in South African homes. See ‘Country Report for South Africa’, Global Initiative to End All Corporal Punishment of Children (April 2016) <http://www.endcorporalpunishment.org/progress/country-reports/south-africa.html> (accessed 18 May 2016).
7 51 of 1977.
8 Courts could sentence those between 18 and 21 either as juveniles or as adults (Roberts & Sloth Nielson Citation1986: 228).
9 The Transkei homeland permitted judicial caning of young females. See Williams, 653, quoting S v Vakalisa 1990 (2) SACR 88 (Tk), 94G-J. By contrast, in S v Motsoesoana 1986 (3) SA 350 (N) (Motsoesoana), 364 I, Thirion J, dissenting, noted in South Africa it had ‘always’ been the case that ‘no female person may be sentenced to corporal punishment’. See also Hansard (1952: col 465). However, the Criminal Law Amendment Act (8 of 1953), in response to the 1952 Defiance Campaign, apparently provided for sentences of whipping for ‘Defiance offenses’, including for women (Mandela Citation1953; O’Malley n.d.), but it is not clear if any such sentences were imposed on women.
10 Thanks to Clifton Crais for suggesting this line of thought.
11 Justice Langa noted there was no lower limit for imposition of a sentence of corporal punishment, but in practice the lower limit in judicial decisions was nine years. Juveniles over 17 could be sentenced to whipping in addition to a prison sentence, but the prison sentence had to be suspended (Williams, 638).
12 The flogging scene in the 1908 satire of racial relations and labour in South Africa, Leaven: A Black and White Story, amply reinforces this point (Blackburn Citation1991).
13 Hansard (Citation1977: col 4425).
14 It is not surprising that over the last generation Hollywood films about racial oppression focus on the use of a lash as a way of concentrating the emotions of audiences through the sight of a person with more power beating someone with less power. In Twelve Years a Slave (both the memoir and the recent film) the power of the whipping scene is heightened when the protagonist is required to whip one of his fellow slaves (Northup Citation1968; McQueen Citation2014).
15 Hansard (1952: col 785–6).
16 The records of the commission are simply a bare set of minutes of meetings, attendees, and witnesses, with no transcript or even summary of testimony (Central Archives Depot (CAD), K67).
17 This recommendation, along with abolition of corporal punishment for adults, was implemented as to England, Scotland and Wales a year after Landsdown’s report. Northern Ireland, which we might also understand as a situation of settler colonialism (with difference marked by religion rather than race), followed three decades later, in 1968 (Tryer v United Kingdom, European Court of Human Rights, Application 5856/72 (1978), overruling sentence of corporal punishment in Isle of Man).
18 The Supreme Court retained the power to impose the ‘cat’, but this effectively ended in 1951, and was finally abolished in 1977.
19 Medical officers not only gave the required certification, but also were present at the punishment (Orr Citation2002). I first became aware of this practice when reading one of James McClure’s Pietermaritzburg mystery novels, in which the district surgeon leaves an autopsy to attend a whipping at the prison. McClure’s novels often brilliantly reveal the absurdities of life under apartheid. In this case, the passage notes the supervisory care exercised by the doctor so the convicted person was flogged, but not overly abused. ‘He had to certify them fit for punishment, see that the kidneys were properly protected, and keep an eye on responses. Buttocks are a common vehicle of abuse, but it is not prudent to abuse them overmuch’ (McClure Citation1982: 16).
20 See also the slightly different numbers in Hansard, which show a quadrupling of numbers of defendants sentenced to corporal punishment from 1948 to 1954 (1955: cols 2776–7).
21 33 of 1952.
22 Hansard (1952: cols. 3204, 3213). Even the plot of Alan Paton’s liberal novel Cry the Beloved Country (1948) revolved around rampant crime, especially burglary, in South Africa’s principal city.
23 29 of 1955. Also see Hansard (1955: col 2776).
24 Hansard (1952: cols 458–66, 781–92, 3191–213, 4059–62, 4071–5).
25 Hansard (1955: cols. 1434, 2778). Some, such as Col Oosthuizen, also worried that those they viewed as respectable white citizens would be whipped under the mandatory sentence (Hansard 1952: col 3208).
26 Also see Hansard (1955: col 2780).
27 Hansard (1955: cols 2778–9).
28 Hansard (1955: cols 2783–84).
29 Hansard (1952: col 319).
30 Hansard (1952: col 3193).
31 Hansard (1952: col 3200).
32 Hansard (1977: cols 4401–2). Ms Suzman attended Parktown Convent (Shane n.d.). I don’t know if the school permitted physical discipline, though Morrell notes this was rare in girls’ schools (Morrell Citation2001c: 292).
33 Hansard (1977: col 4405) (young white farmers caught pulling down traffic signs).
34 Hansard (1952: col 4059).
35 Hansard (1977: cols 4420–1).
36 Indeed, representatives of the Inkatha Freedom Party (IFP) and the African Christian Democratic Party (ACDP) made similar arguments (though without the element of white supremacy) in the debate of the Abolition bill in 1997 (Hansard 1997: cols 3601–8).
37 16 of 1959.
38 96 of 1965.
39 Senate (Hansard 1965: col. 5421).
40 Hansard (1965: cols. 8139-40).
41 Steyn was in 1975 president of the National Institute for Crime Prevention and the Rehabilitation of Offenders (NICRO), and wrote the forward to Midgley’s book Children on Trial (Citation1975). In the early 1990s, during the period of constitutional negotiations, there were 32,000 whippings per year of young males (Super Citation2011: 431).
42 This was a one-person commission. I have not been able to locate minutes of the evidence given to this commission.
43 1965 (4) SA 565 (N) (Kumalo).
44 Kumalo, Fannin J, dissenting.
45 Paragraphs 357–8.
46 United Party opposition leader Harry Lawrence made a similar argument against the Criminal Law Amendment bill in 1955 (Hansard 1955: col 2788). It is notable that the one major holdout among countries singled out as ‘civilised’, the United States, found judicial corporal punishment unconstitutional in 1968 (Jackson v Bishop, 404 F. 2d 571 (1968)). It is not surprising that the Jackson ruling came only four years after the image of ‘bullwhips cracking’ came to embody, along with fire hoses, the defence of white supremacy in Birmingham Alabama.
47 1968 (1) SA 271 (T).
48 1975 (2) SA 526. The Zimbabwe Supreme Court in 1988 looked to this line of cases, among others, when it held whipping of adult offenders to be unconstitutional on the basis that it is inhuman and degrading (S v Ncube 1988 (2) 702 (ZSC)). However, while the criticisms went back to Fannin’s 1965 dissent in Kumalo, many of the cases cited by the Zimbabwe court appeared in South Africa in the very different circumstances, and harsh international spotlight, of the 1980s.
49 See the endorsement of this view by Milne in S v P 1985 (4) SA (N) 107.
50 In terms of the calls for law and order, it is worth noting that there was an increase in violent crime, except homicide, in the late 1960s and early 1970s (Newman & Midgley Citation1975: 8).
51 For one look at the complex effects of apartheid economic policy in the KwaZulu homeland, see Mark Hunter (Citation2010).
52 Note that the Botha Commission (Citation1971: 4.1.4–4.1.8) recommended against making sentences of juvenile whipping subject to automatic review, as youths would then suffer the ill effects of imprisonment while awaiting a ruling. The report argued that it was the purpose of the statute under which juveniles were sentenced to whipping to keep them out of prison. There was no lower age limit for children to receive this punishment, but the Williams court, at 14, said that in practice the lower limit was nine years.
53 Descriptions indicate that adults were whipped while naked, with protective material laid over their kidneys; apparently this had often been the case for juveniles as well, up to 1976. Regulations provided that the instrument used on both adult and juvenile males was a cane, 125cm long by 12mm wide for adults, and 100cm long and 9mm wide for those under 21 (Williams, 637–8, 646 & n. 17; Middleton Citation1984: 155). In 1952 the Minister of Justice planned that exclusively Africans, in accordance with apartheid logic, carry out whippings of Africans (Hansard 1952: cols 4074–5).
54 Hansard (1977: col 438).
55 Note that 1977 was also the year that the US Supreme Court gave its stamp of constitutional approval to whipping of children for disciplinary offences in the US, where, unlike in South Africa, this remains good law (Ingraham v Wright 430 US 651 (1977)). School corporal punishment remains legal in 19 US states, and is common in many rural districts in the South (‘Texas holds tight to tradition on corporal punishment’, M. Collette, Houston Chronicle 14 November 2014).
56 Also see the Viljoen Commission minutes, CAD, K371, v6: 40. The commission called it ‘the Kgotla’, but its branches were collectively referred to as Makgotla. For more on the Makgotla and the UBC, see Clive Glaser (Citation2005), Jeremy Seekings (Citation2001), and Laurent Fouchard (Citation2011: 530–1).
57 This was a considerable backtracking from promises the chairman made when the commission heard testimony in Soweto that ‘this Commission will do its best to get complete legal recognition for the Makgotla … powers such as powers of arrest, jurisdiction in regard to petty matters, and to sentence the transgressor perhaps by imposing a number of lashes, and the powers to execute these sentences imposed for petty offences’ (Viljoen Commission minutes, CAD, K371, v6: 65).
58 For testimony by Makgotla members, see Viljoen Commission minutes, CAD, K371, v6. A characteristic complaint about police appears at 62–3, and another at 68–9.
59 The Makgotla’s claims about tradition were mere assertion, but David Jones’ (2015) work on Namibia suggests there may be something to the claim that traditional authorities disciplined recalcitrant youths through whipping in at least some southern African contexts.
60 Viljoen Commission minutes, CAD, K371, v6: 67–8.
61 Ibid: 52–4.
62 Ibid: 9.
63 Ibid: 12–3, 17–8, 15–6.
64 Morrell found in 2001 that African children were significantly more likely than those from other groups to experience physical discipline in the home, though the study does not attribute this difference directly to ‘tradition’ (Citation2001c: 297–8).
65 Viljoen Commission minutes, CAD, K371, v6:43-44.
66 In debates on the 1977 legislation, Helen Suzman was scathing in her contempt for the Makgotla, which she called ‘a gruesome and primitive form of justice’ (Hansard 1977, cols 3275, 3320).
67 Also compare Viljoen Commission minutes, v6: 17–18 (testimony of Richard Maponya).
68 During the 1989 Defiance Campaign, in reaction to ‘negative publicity’, the South African Police banned its officers from using whips against protesters (‘South African Police to end the use of whips’, C.S. Wren, New York Times 12 September 1989).
69 The murder of Steve Biko in September 1977 was both an important symbol of non-judicial state violence and an important turning point in South Africa’s descent into state and popular violence.
70 Corporal punishment in schools was also an important, and frequently encountered, form of violent discipline for the young, including whites. It is notable that ending it was among the demands of some ‘comrades’ at schools in the 1980s (Niehaus Citation2000).
71 33 of 1986. The Act also provided that adults could only be sentenced to whipping if at least part of a sentence of imprisonment was suspended; those between 17 and 21 could now be sentenced to corporal punishment in combination with other punishments, such as probation, community service, or a suspended prison sentence (Roberts & Sloth-Nielson Citation1986: 226–8).
72 Hansard (1977: cols 3260–1), quoted in Super Citation2011: 430.
73 Hansard (1977: col 4400).