|www.corpun.com : Features : South Africa judicial page 10|
On this page:
On other pages:
11: ILLEGAL PUNISHMENTS, KANGAROO COURTS, NATIVE/CUSTOMARY COURTS
Alongside the official judicial CP set-up in South Africa, there have often been "informal" JCP systems of varying degrees of legality.
As in some other parts of Africa, individual local tribes in certain areas have often had their own "courts", typically simply a village meeting at which "elders" or "chiefs" rule on disputes and order punishments. In some cases whipping or flogging has been one of these.
Where arrangements of this kind worked satisfactorily, the authorities often appear to have been content to leave them alone.
An attempt to incorporate these informal structures into the official system came in 1927 with the Black Administration Act No 38. This provided for a chief or headman to be empowered to punish offences under common law or "black law and custom", notably such things as stock theft. For unmarried males under 30, the penalties could include corporal punishment.
These provisions were re-enacted in 1967 (Proc R348).
The system is based on heads of clans, known as "traditional leaders". One traditional leader has recently written:
The author, President of the Congress of Traditional Leaders (Contralesa), went on to lament the fact that corporal punishment was no longer allowed to be used (see quote in Section 12).
Occasionally a tribal court has exceeded its powers and the matter has ended up in the "real" legal system.
Thus, S v Seatholio  4 SA 368 involved a punishment of a married man of 56. He had failed to pay a fine imposed because his children had been illegally chopping wood. He was sentenced by a tribal court under Black Administration Act 38/27 to 12 strokes. The punishment was meted out with a plastic sjambok on the buttocks. It was claimed that this caused open wounds, but this was denied. The court noted, however, that under s.20(2) of the Act corporal punishment should be imposed only on unmarried males under 30. The man's conviction and sentence were set aside – although the latter was too late as it had already been inflicted.
R v Kumalo  3 SA 381 concerned an assault charge against a Native chief and his constables. The complainant was a 65-year-old native who had misbehaved in a Native Court. He had been ordered to receive 10 strokes with a sjambok, 4 feet in length. He was held down and the first defendant delivered 3 strokes and the fifth defendant (a stronger man) delivered 7 strokes. The beating was a severe one, the marks of the sjambok on the legs and buttocks being visible three months later.
Tribal or "native" courts appear to be an essentially rural phenomenon, typically dealing with property crimes such as cattle theft in a socially stable agricultural environment.
But the system could not readily be transplanted to the urban townships, a series of artificial black ghettos where social structures were fragmentary and the political situation explosive, with widespread resentment of the apartheid regime, particularly among the young.
In the 1970s unofficial "crime-busting" groups called makgotla came to prominence, notably in the huge black township of Soweto. These were illegal groups of vigilantes or "home guards" who held their own "trials" on patches of waste land. On-the-spot floggings sometimes ensued.
One such was featured on television in an ITN news report in the late 1970s. A teenage boy was shown being tried at a makgotla "court" and sentenced to five lashes. These were given across the seat of his trousers as he was made to lie face down on the ground. The reporter said he thought the sentence would have been heavier had TV cameras not been present.
In 1974 the police chief in Soweto issued a warning that floggings at the instance of tribal courts in the township would no longer be tolerated.(2) But clearly the authorities did not succeed in stopping them.
Perhaps because these urban bodies were self-appointed and lacked the de facto popular legitimacy of the rural chiefs, in some cases they turned into mere gangs of thugs, often operating under the aegis of particular local politicians. Other leaders protested that they were dangerous because they were divisively partisan and operated without police supervision (3):
As a consequence, the authorities again attempted to formalise the system and bring it under control:
These ideas did not command universal support:
The controversy continued in the national parliament:
Political violence and polarisation intensified in the 1980s. Groups of young radical blacks calling themselves "comrades" emerged. In 1986 the BBC interviewed "Comrade Boy", who, in his mid-twenties, was running a "People's Court" in another Johannesburg township, Munsieville:
Five years later the London Guardian reported on a similar state of affairs in Mamelodi, a township outside Pretoria, and yet again it was asserted that central government was proposing to co-opt these unofficial arrangements "in order to control them and bring an end to the brutality now associated with them":
In December 1994, residents of the Ivory Park squatter settlement in the mid-Rand area likewise drew up their own rough penal code. The guidelines were later adopted by other squatter settlements in the Gauteng region.
Punishments tended to be of the severe physical kind, possibly because there was not the option of putting those found guilty in prison. The Ivory Park Peoples Court Code of Punishment laid down the following penalties:
Adultery - 500 lashes for the man and banishment and 500 lashes for the woman;
Rape - Paraded naked before receiving 500 lashes, or execution;
Child abuse - 380 lashes and banishment;
Theft - 50 lashes;
Burglary - 200 lashes for first offence; if items not returned to owners, extra 300 lashes;
Assault - 90 lashes;
Assault by a man on his wife - 50 lashes;
Contempt of court - an additional 40 lashes and two-year banishment from the area.
This "court" was still operating in 1998 regardless of the fact that South Africa had now become a democracy under the rule of law. One of its victims, Gideon Muguni, showed reporters the marks on his buttocks and legs after he was given 50 lashes with a sjambok for "being friendly to women". He claimed that many innocent people were being severely sjambokked. (10)
In January 1994 the academic anthropologist Nancy Scheper-Hughes was present at the flogging of three teenage boys by a kangaroo court at the Chris Hani squatter camp in Cape Town.
The boys had stolen money from a shebeen. Initially people demanded their death:
She visited the boys three days later and observed their "raw and bleeding backsides":
The makgotla in the urban areas were essentially driven by socially conservative values, and were mostly tolerated (or possibly at times even quietly encouraged) by the then white-supremacist government. The "people's courts", on the other hand, were broadly an outgrowth of the black liberation movement, often with links to such anti-apartheid groups as the ANC, and run by mostly young people whose overarching purpose was fundamental regime change (which was achieved in 1994, when the ANC came to power after the first democratic elections).
But as we have seen, the "right-wing black vigilantes" and the "left-wing black vigilantes" used remarkably similar methods. In so far as these included floggings, this state of affairs rather undermines claims that corporal punishment can be seen as an alien or "un-African" procedure imposed from outside black culture by, and peculiar to, either the Afrikaner regime or its British colonial predecessors.
Back in the countryside, in 1996 a group called Mapogo a Mathamaga was set up in the Northern Province. Its members are largely black businessmen (some of whom had done surprisingly well out of the old regime) and white farmers, always the most conservative group in South Africa. (12)
By 2000 the organisation was claiming 50,000 members and had spread to other parts of the country.(13)
One of its main aims is to suppress crime, particularly property crime, in areas where the official police and judicial systems are perceived to be overstretched and/or inefficient. Initially it arrested suspects and handed them over to the police, but when police failed to follow up on some of these cases, Mapogo changed tactics and began to take the law into its own hands.
Its vigilante methods have been widely criticised for their arbitrary brutality and lack of due process. But Mapogo's founder, John Monhle Magolego (pictured right), stoutly defends the faith it places in "African medicine" -- the sjambok:
He has consistently maintained that prison is no use:
On another occasion he has said:
The phenomenon was reported around the world, as in this UK press item in 2001:
"I am a firm believer in corporal punishment, and if a young man has been naughty his buttocks must be exposed so that he can be sjambokked as a genuine punishment and deterrent." (16)
The fact that white (generally Afrikaner) farmers are among Mapogo's strongest supporters is perhaps not surprising, because they have long had a reputation for taking the law into their own hands on their farms, particularly in relation to recalcitrant black employees. Such behaviour, though illegal, was rarely prosecuted and, when it was, the courts tended to take a lenient view of it:
An example of this was S v Collett  3 SA 206, where the court considered an illegal punishment by the appellant of a 16-year-old boy on a farm. He had stolen petrol and was offered a beating. He agreed to 6 strokes with a cane. He was fastened by handcuffs to a block and tackle with his feet off the ground - to prevent him wriggling - and he was given 6 cuts on his buttocks in the presence of others with a stick 18in. to 2ft long and ¾ inch thick. The strokes were administered at 5-second intervals. The appellant raised his arm to shoulder level when administering the cuts. The victim did not cry out and he returned to work afterwards and recovered in 3 months. An 18-year-old who had stolen $7 and other things received 9 strokes with a fan belt on a handle. He was fully clothed. The appellant was found guilty, but received a reduced sentence.
Under the new regime in South Africa, farmers might not so easily get away with this sort of behaviour, so they join groups like Mapogo instead. As one of them has said:
A final and different example of South Africa's "long history of informal justice"(12) involves the police arranging an unofficial caning for two young men in agreement with their own father. This was S v Kingston  4 SA 85, where the appellant had been convicted in the Magistrates Court of two counts of robbery. He was imprisoned for 10 months on each count. Police found drugs on him and approached his father to ask what he felt should be done. The father suggested a beating at the police station. The officer in charge of Mrewa Prison was then summoned and came to the police station and the appellant was given 6 cuts with a light cane and his brother 5 cuts by this officer. The appellant said that it was the police who had suggested the beating and he was given 8 not 6 cuts. On review, the court held that the thrashing was improper, and the conviction was set aside.
(1) Holomisa A! Dilizintaba, "Traditional justice helps instil respect for the rule of law", Business Day, Johannesburg, 6 October 2004.
(2) Minister of Police in reply to a question by Mr Mitchell MP, House of Assembly, 16 August 1974.
(3) Harry Mashabela, "Makgotla pose great danger to Soweto", Rand Daily Mail, Johannesburg, 11 March 1980.
(4) Sophie Toma, Dingo Segola and Camuel Dikotla, "Police quiz Thebehali as makgotla drama grows", Rand Daily Mail, Johannesburg, 13 March 1980.
(5) Harry Mashabela, "Official 'tribal courts' for Rand", Rand Daily Mail, Johannesburg, 19 March 1980.
(6) Ike Motsapi, "Dobsonville wants to replace Makgotla", Soweto News, 6 June 1980.
(7) "Suzman: Don't enforce tribal law in townships", Rand Daily Mail, Johannesburg, 11 June 1980.
(8) Michael Dutfield, "A revolution in the townships", The Listener, London, 22 May 1986.
(9) David Beresford, "A gentler type of people's justice", Guardian Weekly, London, 5 May 1991.
(10) Victor Khupiso, "People's court dishes out tough justice to 'Romeo'", Sunday Times, Johannesburg, 5 July 1998.
(11) Nancy Scheper-Hughes, "Who's the Killer? Popular justice and human rights in a South African squatter camp", Social Justice, San Francisco, Vol.22 No 3, Fall 1995, p.143.
(12) Antina von Schnitzler et al., Centre for the Study of Violence and Reconciliation, May 2001.
(14) Alex Duval Smith, "The apostle of rough justice", Weekend Argus, Cape Town, 24 July 1999.(16) Tim Butcher, "Black Vigilantes Dispense Rough Justice at a Price", Daily Telegraph, London, 25 June 2001.
(17) S. Marks and N. Andersson, "The Epidemiology and culture of violence" in: C. Manganyi and A. du Toit (Eds.), Political violence and the struggle in South Africa, Macmillan, London, 1990, cited in von Schnitzler et al., op. cit.
Related video clip: Extract from a TV documentary showing a vigilante whipping in 1999.
Next: Section 12: The deterrent effect of corporal punishment
About this website
www.corpun.com Main menu page