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Abstract
This article traces the history of the punishment of sexual assault cases in South Africa's Eastern Cape region from the late pre-colonial period through the turn of the twentieth century. Sexual assault crimes provide a revealing perspective on practices of punishment because they could be, and were, adjudicated through any of the broad array of legal systems – formal and informal, customary and Roman-Dutch, civil and criminal – which characterised the legal landscape of the colonial Eastern Cape. When British administrators created a colonial legal system in the Eastern Cape in the 1850s, they faced the task of governing a Xhosa-speaking population with substantially different ideas about punishment. Compensation payments, reckoned in cattle, were the standard punishment for most wrongs in pre-colonial Xhosaland. Discipline within the family might take the form of corporal punishment, but public punishments generally did not. The reliance on compensation payments harnessed kinship obligations to the maintenance of public order. British legal thought, however, considered compensation payments appropriate only in civil cases. Even fines (payable to the state) were appropriate only for minor crimes; major crimes required imprisonment, corporal punishment, or death. This difference posed a problem for administrators attempting to secure the legitimacy of the colonial legal system. In order to induce Africans to use the colonial legal system, they needed to satisfy expectations of compensation payments. The compromise that emerged consigned compensation payments to civil disputes, where customary law was recognised, and minor criminal cases. Unwilling to trust kin networks to rein in their unruly members, British administrators insisted on punishments whose weight was born by the individual – at least in the case of ‘serious’ crimes. However, allegations of forcible, even violent, non-consensual sex continued to be adjudicated within the customary (civil) court system, where they were labelled ‘seduction’ or ‘adultery’.
Notes
1 Spellings of proper names follow the relevant source material. Standard spellings of many Xhosa words, including names, have changed in the intervening years.
2 Western Cape Provincial Archives and Records Service [Hereafter CA] BK 86, ‘Proceedings of a Court of Inquiry as to a case of alleged Rape, referred to Captain Reeve, Special Magistrate of the Chief “Kama”, in conjunction with “Kama”. Chief Commissioner of British Kaffraria. Middle Drift, 25 September 1856.
3 CA 1/NKE 1/2/4, Case of Mkuhlwana, 15 March 1894.
4 See, for example, C. Villa-Vilencio and W. Verwoerd (eds), Looking Back Reaching Forward: Reflections On the Truth and Reconciliation Commission of South Africa (Cape Town, University of Cape Town Press, 2000); R. Rotberg and D. Thompson (eds), Truth v. Justice: The Morality of Truth Commissions (Princeton, Princeton University Press, 2000).
5 M. Minnow, ‘Between Vengeance and Forgiveness: South Africa's Truth and Reconciliation Commission’, Negotiation Journal, 14, 4 (1998), pp. 319–55.
6 D. Tutu, No Future Without Forgiveness: Reflections on Restorative Justice (New York, Doubleday, 1999); A. Krog, ‘Forgiveness as Part of an Interconnectedness Towards Wholeness’, South African Journal of Philosophy, 27, 4 (2008), pp. 353–66.
7 D. Killingray, ‘The Rod of Empire: The Debate over Corporal Punishment in the British Colonial Armed Forces’, Journal of African History (hereafter JAH), 35, 2 (1994), pp. 201–16; S. Pierce, ‘Punishment and the Political Body: Flogging and Colonialism in Northern Nigeria’, Interventions, 3, 2 (2001), pp. 206–21; R. Turrell, White Mercy: A Study of the Death Penalty in South Africa (Westport, CT, Praeger, 2004); I. Evans, Cultures of Violence: Lynching and Racial Killing in South Africa and the American South (Manchester, Manchester University Press, 2006); S. Hynd, ‘Killing the Condemned: the Practice and Process of Capital Punishment in British Africa, 1900–1950s’, JAH, 49, 3 (2008), pp. 403–18.
8 F. Bernault, ‘The Shadow of Rule: Colonial Power and Modern Punishment in Africa’, in F. Dikötter and I. Brown (eds), Cultures of Confinement: A History of the Prison in Africa, Asia, and Latin America (Ithaca, NY, Cornell University Press, 2007), p. 65.
9 D. Killingray, ‘Punishment to Fit the Crime? Penal Policy and Practice in British Colonial Africa’, in F. Bernault (ed.), Enfermement, prison et châtiments en afrique: Du 19e siècle a nos jours (Paris, Karthala, 1999).
10 Bernault, ‘Shadow of Rule’, pp. 69–73; D. Branch, ‘Imprisonment and Colonialism in Kenya, c.1930–1952: Escaping the Carceral Archipelago’, International Journal of African Historical Studies, 38, 2 (2005), pp. 239–65.
11 Much of the relevant literature is summarised in T. Spear, ‘Neotraditionalism and the Limits of Invention in Colonial Africa’, JAH, 44, 1 (2003), pp. 3–27. More recently, see B. Shadle, Girl Cases: Marriage and Colonialism in Gusiiland, Kenya, 1890–1970 (Portsmouth, NH, Heinemann, 2006) and D. Jeater, Law, Language and Science: The Invention of the Native Mind in Southern Rhodesia, 1890–1930 (Portsmouth, NH, Heinemann, 2007), pp. 77–102.
12 S. Engle Merry, ‘Legal Pluralism’, Law and Society Review, 22, 5 (1988), p. 869; L. Benton, Law and Colonial Cultures: Legal Regimes in World History (New York, Cambridge University Press, 2002), p. 3.
13 For the purposes of this analysis, the King William's Town District includes the two separate districts of Middledrift and Keiskammahoek, which split from King William's Town in the 1890s.
14 Like most writing on pre-colonial social practice, this section of the article draws evidence from the writings of early missionaries and travellers in the Eastern Cape, as well as court records produced during the early years of colonialism and the writings and testimony of Xhosa-speakers from the later nineteenth century. On the ideology of ukuhlonipha see M. Hunter (née Wilson), Reaction to Conquest: Effects of Contact with Europeans on the Pondo of South Africa (London, Oxford University Press, 1936), pp. 36–40, 162–63, 177; and J.H. Soga, The Ama-Xosa: Life and Customs (London, Kegan Paul Trench, 1932), p. 208.
15 F. Fleming, Southern Africa: A Geography and Natural History of the Country, Colonies, and Inhabitants (London, Arthur Hall, 1856), p. 243.
16 Wilson, Reaction to Conquest, p. 164.
17 For example, Wesleyan Methodist Missionary Society Archive, School of Oriental and African Studies (hereafter WMMS), Southern Africa – Incoming Correspondence – Cape Town, letter from William Shrewsbury, Mount Coke, 30 January 1831.
18 See, for example, I. Schapera, A Handbook of Tswana Law and Custom (Oxford, Oxford University Press, 1938), p. 47. Schapera argues for a Tswana division between civil and criminal law ‘in practice, although not in theory’, but also notes the importance of compensation awards even in criminal cases.
19 H. Lichtenstein, Travels in Southern Africa in the Years 1903, 1904, 1905, and 1906. A. Plumptre, trans. (London, Henry Colburn, 1812), p. 288.
20 D. Jeater, ‘“I am willing to pay for the damage done”: Parallel systems of criminal law in white-occupied Southern Rhodesia, 1896–1923’ (unpublished paper, Naivasha, Kenya, 2002).
21 E. Thornberry, ‘Sex, Violence, and Family in South Africa's Eastern Cape’, in E. Burrill, R. Roberts, and E. Thornberry (eds), Domestic Violence and the Law in Colonial and Post-colonial Africa (Athens, Ohio University Press, 2010), pp 117–37. Ukudlwengula denotes a violent sexual assault against a waking woman, and ukuzuma the stealthy assault of a sleeping woman.
22 CA 1/NKE 2/1/1/11, Sannav v. Vananda, 8 December 1891; CA 1/NKE 2/1/1/21, Cesemba v. Njadu, 4 January 1895.
23 Cape of Good Hope, Report of the Commission on Native Law and Custom (Cape Town, Government Printer, 1883), Appendix C, p. 124. The report identifies the author of this letter as J. Liefeldt, but the letter's biographical details indicate the author as Theophilus Liefeldt.
24 CA SGG 1/1/97, Case of Sontaba, 18 May 1875.
25 Report of the Commission on Native Laws and Customs, Minutes of Evidence, p. 86. Tshuka identified a distinct type of case as ‘the case of assault, or any case of blood. These “isizi” cases as they are called, all go to the chief, the councillors can deal with cases of theft’. ‘Isizi’ is more commonly translated as ‘death dues’, a payment claimed by traditional leaders when commoners died in certain circumstances. J. Peires, The House of Phalo: A History of the Xhosa People in the Days of Their Independence (Berkeley, University of California Press, 1981), p. 44.
26 Report of the Commission on Native Law and Custom, Minutes of Evidence, p. 393.
27 Report of the Commission on Native Law and Custom, Minutes of Evidence, p. 86. The complete quote incorporates British definitions of the distinction between civil and criminal wrongs, discussed below. Toto testified that rape ‘is not a criminal offense; where a married woman is concerned, the fine goes to the husband’, but that ‘where violence has been used, the case goes before the chief, and is then looked on as criminal; the chief would give a portion of the fine to the husband if he so chose’.
28 Peires, House of Phalo, p. 52.
29 Fleming, Southern Africa, p. 278. Fleming lingers with relish over descriptions of the torture of an alleged witch.
30 J. Campbell, Travels in South Africa: Undertaken at the Request of the Missionary Society (London, T. Rutt, 1815), Vol I. Campbell writes that ‘Theft is punished also by fine, and sometimes by beating with a rod, in which case the king is executioner’, p. 345.
31 H.H. Dugmore, ‘Rev. H.H. Dugmore's Papers’, in J. Maclean (ed.), A Compendium of Kafir Laws and Customs (Grahamstown, J. Slater, 1909; first published 1858), p. 37.
32 ‘Mr. Warner's Notes’, in Maclean, Compendium of Kafir Laws, p. 75. See also J. Barrow, An Account of Travels into the Interior of Southern Africa, Vol. II (London, T. Cadell and W. Davies, 1804), p. 160.
33 See S. Kay, Travels and Researches in Kaffraria (New York, Harper, 1834), p. 142; and J. Brownlee, quoted in G. Thompson, Travels and Adventures in Southern Africa (London, Henry Colburn, 1827), p. 447. Several sources claim that Ngqika had outlawed such retribution among his followers: Lichtenstein, Travels in Southern Africa, p. 287.
34 In the colonial period, see CA SGG 1/1/448, Case of Kaziwa alias Maquzudlo, 21 November 1894.
35 H.H. Dugmore, ‘Rev. H.H. Dugmore's Papers’, p. 55.
36 ‘Mr. Brownlee's Notes’, in Maclean, Compendium of Kafir Laws, p. 121.
37 E.P. Thompson, ‘The Moral Economy of the English Crowd in the Eighteenth Century’, Past and Present, 50, 1 (1971), pp. 76–136; E. Burrill and R. Roberts, ‘Domestic Violence, Colonial Courts, and the End of Slavery in French Soudan’, in Burrill, Roberts, and Thornberry (eds), Domestic Violence and the Law, pp. 33–53.
38 T. Keegan, Colonial South Africa and the Origins of the Racial Order (Charlottesville, University of Virginia Press, 1996), pp. 75–128.
39 S.M. Waddams, Sexual Slander in Nineteenth-Century England: Defamation in the Ecclesiastical Courts, 1815–55 (Toronto, University of Toronto Press, 2000).
40 G. Behlmer, Child Abuse and Moral Reform in England, 1870–1908 (Stanford, Stanford University Press, 1982); J. Middleton, ‘Thomas Hopley and mid-Victorian Attitudes to Corporal Punishment’, History of Education, 34, 6 (November 2005), pp. 599–615; P. Burroughs, ‘Crime and Punishment in the British Army, 1815–1870’, English Historical Review, 100, 396 (July 1985), pp. 545–71.
41 D. Lieberman, ‘Mapping Criminal Law: Blackstone and the Categories of English Jurisprudence’, in N. Landau (ed.), Law, Crime and English Society, 1660–1800 (Cambridge, Cambridge University Press, 2002), pp. 139–64; L. Farmer, ‘Reconstructing the English Codification Debate’, Law and History Review, 18, 2 (2000), especially pp. 417–22.
42 P. King, ‘Punishing Assault: The Transformation of Attitudes in the English Courts’, Journal of Interdisciplinary History, 27, 1 (1996), p. 49.
43 Thornberry, ‘Sex, Violence, and Family’, pp. 117–37.
44 WMMS, Southern Africa – Incoming Correspondence – Cape Town, Letter from William Shrewsbury, Butterworth, 31 December 1829.
45 House of Commons Parliamentary Papers, Cape of Good Hope, Correspondence with the Governor of the Cape of Good Hope, relative to State of the Kafir Tribes on Eastern Frontier, 50, Sir Harry Smith, 7 January 1848.
46 Zambia National Archive NR G2, P.J. Macdonnell, quoted in Martin Chanock, Law, Custom and Social Order: The Colonial Experience in Malawi and Zambia (New York, Heinemann, 1998), p. 75.
47 M. Chanock, Law, Custom and Social Order. However, while Chanock emphasised the tendency of colonial officials and early anthropologists to ‘believe in the ferocity of the African criminal law and in the ubiquity of death as a sanction’, the opposite was true in the Eastern Cape (p. 125). For the classic analysis of such evolutionary metaphors, see J. Fabian, Time and the Other: How Anthropology Makes its Object (New York, Columbia University Press, 1983).
48 Cape of Good Hope, Statistical Register for the Year 1897 (Cape Town, Government Printer, 1898), pp. 59–60.
49 W. Worger, ‘Convict Labour, Industrialists and the State in the US and South Africa’, Journal of Southern African Studies (hereafter JSAS), 30, 1 (2004), pp. 63–86; N. Penn, ‘John Montagu's Convict System in the Mid-Nineteenth Century Cape Colony’, Cultural and Social History, 5, 4 (2008), pp. 465–80.
50 S. Newton-King, Master and Servant on the Eastern Cape Frontier, 1960–1803 (Cambridge, Cambridge University Press, 1999), pp. 139–41.
51 Commission on Native Laws and Customs, Minutes of Evidence, p. 314, testimony of W.H. Read.
52 S. Berry, No Condition is Permanent: the Social Dynamics of Agrarian Change in Sub-Saharan Africa (Madison, University of Wisconsin Press, 1993). See especially chapter two, pp. 22–42.
53 Crown Colony of British Kaffraria, Ordinance 1 of 1860. For earlier policies, see T.W. Bennett, Customary Law in South Africa (Lansdowne, Juta, 2004), pp. 34–45.
54 Cape Colony, Proclamation 110 of 1879.
55 Cape Colony, Proclamation 31 of 1886, Sec. 10, 22.
56 Jeater, Law, Language and Science, p. 77.
57 Report of the Commission on Native Laws and Customs, Appendix I, 396. Letter from H.G. Elliot, Chief Magistrate, Tembuland.
58 See volumes in series CA SGG 2/1/1/-. Data were compiled from all cases prosecuted in King William's Town District (including Middledrift and Keiskammahoek), and included 24 total convictions for rape.
59 CA SGG 1/1/589, Case of Tahoo Manto, 24 June 1897.
60 Report of the Commission on Native Laws and Customs, Minutes of Evidence, p. 261. Testimony of W.B. Chalmers.
61 CA MDS 10, Special Magistrate [Robert Fielding], Middledrift, 12 April 1881.
62 CA 1/MDT 5/1/1/1/1, Clerk in Charge [C.A. King], Middledrift, to Civil Commissioner, King William's Town, 10 January 1893.
63 Compiled from CA MDS 2, 1/KWT H2/2/1, 1/MDT 2/2/1/2.
64 CA 1/KWT H2/2/1, Songo v. Nogqala, 5 August 1884.
65 CA FA 4/1/3, Case of Kosana, 15 September 1873.
66 CA 1/NKE 2/1/2/1, Mahanya Matiwani v. Son of Poswa, 15 June 1877.
67 CA 1/NKE 1/1/1/6, Case of Mcilikali, 18 September 1889.
68 CA 1/NKE 1/2/1–12. There were 34 convictions for rape, attempted rape, and indecent assault for which sentencing information was recorded. Fines were applied as part of the sentence in 13 cases, and awarded to a private individual in nine. Not all of these awards were actually compensation payments; they include payments to headmen and informants other than the families of the victims.
69 FA 4/1/3. Cases were not divided into civil and criminal categories before annexation, but the records of the Fingo Agent include compensation awards in three clear cases of rape, three cases of ‘attempted adultery’ that were likely non-consensual, as well as in dozens of assault cases.
70 The Circuit Court was established by Proclamation 18 of 1889; before that date, serious cases were heard by a Special Court composed of the Chief Magistrate and two Resident Magistrates.
71 CA SGG 2/1/2/1–2. These record books of cases in the Transkeian Territories covers the years 1900–1911, and while not all judgments are recorded, there are records of sentences in more than 150 cases.
72 CA CMT 2/485–492. Sexual assault includes cases of rape, attempted rape, indecent assault, and carnal knowledge of a child.
73 CA NKE 2/1/1/3, Lambala v. Siko, 31 March 1887.
74 CA 1/NKE 2/1/1/11, Matshoba of Maqaqana v Matyila of Mfunyana, 8 September 1891. For more examples, see 1/NKE 2/1/1/11, case no. 134 of 1891; 1/NKE 2/1/1/16, case no. 71 of 1892; and 1/NKE 2/1/1/20, case no. 19 of 1895.
75 CA SGG 1/1/321, Case of Gangelizwe, 5 November 1887.
77 Cape Colony, Department of Native Affairs, Circular no. 1 of 1880.
76 In practice, some men fulfilled the office of headmen without stipend or official government recognition, and the office seems to have been functionally hereditary. See CA 1/KWT H4/1/1/2, Clerk in Charge, King William's Town (Charles King) to Civil Commissioner, King William's Town, 23 March 1886.
78 CA 1/KWT H4/1/1/3 Clerk in Charge, King William's Town (Charles King) to Civil Commissioner, King William's Town, 25 July 1888.
79 CA CMT 2/34, Resident Magistrate of Nqamakwe [Thomas King], ‘Report for Blue Book 1884’.
80 CA SGG 1/1/299, Case of Charles Tiwani, 18 June 1887.
81 CA NA 154, William Nikelana to Secretary for Native Affairs, 22 February 1876, enclosure in Fingo Agent Captain Matthew Blyth to Secretary for Native Affairs, 24 February 1876. See also CA SGG 1/1/425, Case of Dyassop, 24 March 1893.
82 CA SGG 1/1/442, Case of Sambo and Msutu, 1 May 1893.
83 CA 1/NKE 2/1/1/1–12.
84 Report of the Commission on Native Law and Custom, Appendix C, p. 43. See also CMT 3/147, W.C. Scully (Resident Magistrate, Nqamakwe) to Chief Magistrate, Transkei, 20 October 1896.
85 P. Phoofolo, ‘Epidemics and Revolutions: The Rinderpest Epidemic in Late Nineteenth Century Southern Africa’, Past and Present, 138 (1993), pp. 112–43.
86 This dynamic has been best documented in neighbouring Natal: B. Carton, Blood from Your Children: The Colonial Origins of Generational Conflict in South Africa (Charlottesville, University of Virginia Press, 2000); T. McClendon, Genders and Generations Apart (Portsmouth, NC, Heinemann, 2002).
87 P. Frye, ‘Siyamfenguza: the Creation of Fingo-ness in South Africa's Eastern Cape, 1800–1835’, JSAS, 36, 1 (March 2010), pp. 25–40; T. Stapleton, ‘Oral Evidence in a Pseudo-Ethnicity: The Fingo Debate’, History in Africa, 22 (1995), pp. 359–68.
88 W. Beinart, The Political Economy of Pondoland, 1860–1930 (Cambridge, Cambridge University Press, 1982); Phoofolo, ‘Epidemics and Revolutions’; C. Bundy, ‘Mr Rhodes and the Poisoned Goods: Popular Opposition to the Glen Grey Council System, 1894–1906’, in W. Beinart and C. Bundy (eds), Hidden Struggles in Rural South Africa (London, James Currey, 1987), pp. 138–65.
89 S. Trapido, ‘African Divisional Politics in the Cape Colony, 1884 to 1910’, JAH, 9, 1 (1968), pp. 79–98.
90 CA SGG 1/1/ 124, 26 November 1876, Case of Jacob Gawshe.
91 CA SGG 1/1/118, Case of Bantshu, 12 May 1876. Bantshu was apprehended on 12 May, and committed for trial on 18 May 1876. The Solicitor General's decision was recorded on 25 May and dispatched on 30 May after which it would not have reached King William's Town for several days.
92 CA SGG 1/1/237, Case of Nkohla, 26 May 1883.
93 CA SGG 1/1/42, Case of Kwahluka, 2 October 1868.