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12. THE DETERRENT EFFECT OF CORPORAL PUNISHMENT
Probably the most contentious question about JCP has always been whether or not it really acts as a deterrent to crime. The point has been discussed intensively in many societies for at least 200 years.
In the UK, the 1938 Cadogan Report came to the conclusion that CP was not a deterrent, or not particularly so. As far as adult flogging was concerned, Cadogan purported to show by means of some re-offending statistics that CP had no particular propensity to inhibit recidivism in the case of an individual. The evidence presented as to juvenile JCP was more anecdotal.
Many judges (among others) strongly disagreed with Cadogan's conclusions. Nevertheless, the report's headline finding -- "corporal punishment is not a deterrent" -- quickly became the conventional wisdom among policymakers and the political class, and not only in the UK. It has continued to be so, despite the report's statistics and methodology having more recently been seriously challenged as flawed, for example by Professor Graeme Newman in his pathbreaking book Just and Painful (1985).
In South Africa, the 1947 Lansdown Report (1) noted what Cadogan had said in the UK about juvenile CP but paid no attention to its statistical exercise in relation to adults. Rather, it stated at para. 495 (unofficial translation from Afrikaans):
Lansdown noted the need for "sensible realism" and continued:
Some judges seem to have taken it as read that JCP is a deterrent. In R v Philip Harrison (20 June 1921) the offender was convicted of housebreaking, having stolen two blankets. The court observed:
In R v Anthony and R v Mbeza  4 SA 532, the judge remarked:
"I am sure my decision to order strokes in addition to imprisonment up to 10 strokes will have a deterrent effect. I have a full gallery every day and I can hear from their moans when sentence is passed that it is sinking in".
A magistrate, writing in 1984, claimed success for the idea of imposing whipping only, or whipping combined with a suspended prison sentence. This was a new policy designed to reduce prison overcrowding (unofficial translation from Afrikaans):
In S v Kumalo and Others  4 SA 565AE, the court set out seven reasons justifying sentences of whipping. The first two were:
The Viljoen Commission in its 1976 report said that evidence given by African witnesses was almost unanimous in calling for whipping to be retained. These witnesses argued that it was respected by Africans and was believed to be an effective deterrent. Some had asked that it be not only retained but used even more frequently by the courts. (3)
This is clearly still the view of the leader of the vigilante organisation Mapogo a Mathamaga:
Turning to the much more frequent canings of boys under 21 by the police ("section 292 whippings"), opinions on their deterrent value remain sharply divided.
The Lansdown Commission wrote in 1947 (unofficial translation from Afrikaans):
Our elderly correspondent who was sentenced to juvenile caning on two occasions in the 1940s has written:
Of course, the effect on individual offenders can tell us nothing about the wider deterrent effect of a particular penalty, i.e. to what extent news of it deters other people from committing offences in the first place. Even if the penalty in question fails to prevent its recipient from reoffending himself, it may still have value pour encourager les autres -- though presumably only if instances of its being used are sufficiently well publicised. Most juvenile JCP cases in South Africa, however, appear not to have been reported in the press.
At all events the President of the Congress of Traditional Leaders, writing as recently as October 2004, was unequivocal:
No less a figure than the deputy head of the national prosecution service has conceded that, since corporal punishment was abolished, more and more youth offenders return to the courts for a second and even a third time:
This last point is borne out by an informant who was involved in meting out the punishments at a police station in the 1950s. He observed that of those who had received a juvenile caning, when asked about the point some time afterwards, none ever indicated that the fear of a repeat dose would keep him straight in the future. What many of them did say, though, was that the knowledge that, as second offenders, they might not get off with a caning, but be sent to prison or reformatory, would make them think twice about getting into trouble again. The informant noted that the juvenile version of the punishment, even before 1977 when it was applied to the bare seat, was not that terrible or much worse than what used to be a fairly standard school punishment, and that it would probably strike no more terror into a tough young juvenile delinquent than getting "six of the best" from the headmaster's cane would be to the average schoolboy. (5)
(1) Verslag van de Komissie op Straf- en Gevangenishervorming [Report of the Commission on Penal and Prison Reform] ("Lansdown Report"), Government Printer, Pretoria, 1947.
(2) CA Lofriet, "Lyfstraf ingevolge Art. 292 Wet 51 van 1977" [Corporal punishment in terms of Article 292 of Act 51 of 1977], The Magistrate/Die Landdros, Johannesburg, Vol 19 No 1, January-March 1984.
(3) Verslag van die Kommissie van Ondersoek na die Strafstelsel van die Republiek van Suid-Afrika [Report of the Commission of Enquiry into the Penal System of the Republic of South Africa] ("Viljoen Report"), Government Printer, Pretoria, 1976.
(4) John Monhle Magolego in 1999, quoted in Antina von Schnitzler et al., Centre for the Study of Violence and Reconciliation, May 2001.
(5) Private correspondence with the present authors.
(6) Holomisa A! Dilizintaba, "Traditional justice helps instil respect for the rule of law", Business Day, Johannesburg, 6 October 2004.
Next: Section 13: The abolition of JCP
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