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www.corpun.com :  Features :  South Africa judicial page 3

JUDICIAL CORPORAL PUNISHMENT IN SOUTH AFRICA

Section 4



CONTENTS

On this page:

4. Corporal punishment of "juveniles"

On other pages:

1. Introduction

2. Implements and terminology

3. Historical background and legislative timeline

5. "Prison discipline" canings

6. What caning of adults involved

7. What caning of juveniles involved

8. Interesting cases (adult)

9. Interesting cases (juvenile)

10. Statistics

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

12. The deterrent effect of corporal punishment

13. The abolition of JCP


4: CORPORAL PUNISHMENT OF "JUVENILES"

EARLY DAYS

In 1869 Cape Colony courts were restricted to using sentences of no more than fifteen strokes for children under the age of fifteen.

Enactments in the four colonies varied:

- In the Cape and Transvaal, a male of 14 years or under convicted by a magistrate could be sentenced to a moderate correction with cane or rod up to fifteen cuts.

- In the Orange Free State, a youth under 16 could be sentenced to twelve strokes with a cane or rod (Ord 7/1902 (O) s.63, read with Ord 7 of 1903 (O).

- In Natal a male of 14 years or under could be given ten cuts (Act 21/1869 (C) Act 22/1896 (N) s.22, Magistrates Court Proclamation 21/1902 (T) s.36, Ord No 7 of 1902 (O) s.65.) Later a male between 10 and 18 convicted of a breach of a by-law or of a non-capital crime could be sentenced by a magistrate to twenty such strokes (Act 23/1909 (N).(1)

WHAT IS A JUVENILE?

From 1917, under the uniform laws following Union in 1910, males under 16 could be given "cuts" in lieu of any other punishment for a criminal offence (Act 31/1917 s.353).

In 1935 the General Law Amendment Act 46/1935 s.64 provided that any male under 21 years of age could be given cuts in lieu of any other punishment for a criminal offence. This was an unusually high age compared with similar provisions in other jurisdictions (in England and Wales it was 14, in Scotland 16, for example). It calls to mind a somewhat similar change in the Isle of Man in 1960.

Thus, lower courts could order corporal punishment for male "juveniles" for any offence, in contrast to their more restricted powers in relation to adult offenders.

The 1955 Criminal Procedure Act (no 56 of 1955) provided in s.345 that:

"If a male person of not exceeding the age of twenty-one years is convicted of any offence, the court before which he is convicted may, in lieu of any other punishment and as well in the case of a first conviction as of any subsequent conviction, sentence such person to receive in private a moderate correction of whipping not exceeding ten cuts, which correction shall be administered by such person and in such place and with such instrument as the court may appoint. The parent or guardian of such first mentioned person shall have the right to be present."

Because South Africa had now defined juveniles as being aged up to 21, the courts could treat older teen boys as children in other respects also, such as sending them not to prison or Borstal but to reform school (where they might be kept until age 23).

INCIDENCE

Dr James Midgley, a sociologist, carried out a research study and published the results in 1974 under the title "Sentencing in the Juvenile Court".(2)

He was given access to the records of the Cape Town juvenile court for 1968:

"In all, 898 cases in the juvenile court were examined. The term 'case' was deliberately chosen since it refers to a set of judicial events and not to a specific child. This was necessary because some children appeared on more than one occasion [...]

"In 51 per cent of the cases before the court the children involved were aged 16 to 17 years. Nine per cent of the children before the court were in the 7-to-12 and 37 per cent in the 13-to-15-year-old age groups. Only 2 per cent were aged between 18 and 21 years. The South African criminal statistics reveal that the age group most frequently before the juvenile court is that of the 17-year-olds; but in the juvenile court in Cape Town it is that of the 16-year-olds. Relatively few very young children appeared before that court. Twenty-eight were under 10 years of age, six were aged 9 years and two were aged 7 and 8 years respectively. The oldest young person before the court was aged 20 years.

"Differentials in the sex distribution of the children and young people before the court were also recorded. For every girl before the court there were ten boys [...]

"The vast majority of the cases before the Cape Town juvenile court involved Coloured [mixed race] children or Coloured young people. Only seven involved Asian children -- less than 1 per cent of all appearances -- while 3.5 per cent and 4.5 per cent involved African and White children respectively. The remaining 91 per cent involved Coloured children. Although the disproportionately large number of Coloured children before the court was in part due to the demographic composition of the Cape Town magisterial district, the proportion was larger than the proportion of Coloured children in the population of the area of the court's jurisdiction and in the population of the city as a whole. "

Midgley found that 76 per cent of the cases involved property offences (38 per cent theft and 19 per cent housebreaking) and 21 per cent involved offences against the person. Of the 898 cases, 83 per cent resulted in verdicts of guilty. Whipping was the sentence most frequently imposed:

"No less than 331 young offenders, or 57 per cent of those convicted, were whipped. Whippings were imposed for all types of offence, covering all age and ethnic groups and irrespective of previous convictions. Females, it should be borne in mind, may not be whipped.

"Although the juvenile court is empowered to impose a whipping of up to ten strokes [reduced to 7 in 1977], the limit was never reached. Eight strokes was the maximum to which any child or young person was sentenced and three strokes the minimum. Sentences of even-numbered strokes predominated, six strokes being the number most often imposed by the juvenile-court magistrates, followed by four and eight strokes. Thirty-eight per cent of those sentenced to be whipped received six strokes, 24 per cent four strokes and 19 per cent eight strokes.

He noted that

"whippings were somewhat more commonly imposed on teenage children than on those who were younger [...] The youngest children sentenced to a whipping were 9 years of age and the oldest was a 20-year-old youth. Sixteen- and 17-year-olds were most frequently subjected to this punishment. Sixty per cent of those [of age 16 and 17] who were convicted were sentenced to be whipped; this figure is to be compared with just over one half of all who were convicted, and 56 per cent of those aged 13 to 15.

Proportionally far fewer White children were sentenced to be whipped than Black children. African and Asian children were not given this sentence as frequently as Coloured children. Whippings were imposed on 60 per cent of the Coloured children who were convicted, on 50 per cent of the few Asian children who were convicted, on 36 per cent of the African children who were convicted but on only 12 per cent of the White children who were convicted."

Far from being the last resort, corporal punishment in the juvenile courts was more or less a first resort:

"The sentence of whipping was imposed on those without a previous conviction almost as frequently as on those who had one previous conviction. Only children with two or three previous convictions were given the sentence appreciably less often. Children with several previous convictions were most frequently committed to reform school. About 60 per cent of those with no previous convictions, 63 per cent of those with one previous conviction and 40 per cent of those with two previous convictions were whipped. "

According to Department of Justice figures, the whipping of juvenile males in 1982 accounted for around 39,000 cases -- well over 100 canings for every day of the year. Even ten years later, on the eve of the transition to democracy, the figure was still 36,000. Most of these clearly went unreported in the media.

MODUS OPERANDI

While the number of youths eligible for judicial caning grew over the years, the maximum number of strokes had gradually come down.

In 1917 the maximum number of strokes was fifteen.

In 1944 under Act 32 of 1944, the maximum number of strokes was ten.

In 1971 Mr Justice Botha had referred to the nature of juvenile corporal punishment and he recommended that the maximum number of strokes should be the rather unusual number of seven.

This recommendation was taken over by the Viljoen Commission(3) and implemented in the Criminal Procedure Act No 51 of 1977.

The other significant change in 1977 was the provision about "normal attire": before that, juvenile canings had been applied across the unclothed posterior, though the law does not appear to have made this explicit. This change, too, had been one of the recommendations of the Viljoen Commission.(3)

From 1977, then, the legislation provided that a male under 21 might be ordered by any court, for any offence, to receive up to seven strokes of the cane on his clothed buttocks.

The legislation did not prescribe the instrument to be used, who would be responsible for inflicting the punishment, or where it was to take place. These matters were left to the court.

In practice, the punishment was usually inflicted with a "light cane" of about the same dimensions as were specified for juvenile use in prisons, viz. 1 metre long and 9 mm thick (Prison Regulations 1956 -- see Section 4).

The job of administering juvenile canings was, in practice, always one for the police, to be carried out either in the court buildings or a nearby police station.

The South African Law Reports provide a number of illustrations of how caning sentences were pronounced in practice.

In R v Dhalamini [1947] 2 SA 971 an 18-year-old was convicted of culpable homicide and sentenced to four months' imprisonment, suspended for three years, and a driving ban of three years plus

"a whipping of six (6) strokes on his bare buttocks with a cane at the hands of Sgt Delpont within the precincts of Manlabatini lockup".

In S v B-A (12 January 1968) (Transvaal) (not reported), a 15-year-old male was sentenced to receive a "moderate correction of whipping of 4 strokes with a light cane to be administered by the sergeant in charge of the police cells attached to the local court". On appeal, the Judge indicated that the offender's father would be "well able to correct any misdemeanours of his children" and amended the sentence to read "a moderate corporal punishment to be inflicted by the father of the appellant".

This ruling was criticised in 1968 SALJ Vol 85, 243, on the basis that the sentence as amended was ambiguous as to the number of strokes, the instrument, and the place and manner of infliction, and hence not in accordance with s.345(1) of the 1955 Act, which required the Court to specify these things.

In S v Pledger [1975] 2 SA 244 the appellant, convicted as an adult of drug dealing and sentenced to five years' imprisonment, had his sentence set aside. Though now over 21, he had been under 21 when the crime was committed. The court considered that he should have been dealt with as a juvenile, ordering:

"The accused is sentenced to receive in private a moderate correction of a whipping of five cuts with a light cane, such cuts to be administered in private by Constable Stander of Port Elizabeth in the police cells attached to the magistrates court, Port Elizabeth. The parent of the appellant is entitled to be present".

The difference between parental and judicial canings was noted by the court in S v Manuel en Andre [1975] 3 SA 790:

"The imposition of strokes must be handled judicially in the case of juveniles. The infliction of strokes by an official in the police cells is in no way to be compared with the administration of strokes by a father in the exercise of his parental duty. The first method can in many cases have an injurious psychological effect on the child".

The court further noted that

"we are dealing here with the cold clinical administration of corporal punishment, not with a parental chastisement which takes place within a loving family circle".

INFLICTION OF THE PUNISHMENT DESPITE REVIEW OR APPEALS

Whereas adult whippings (and all other serious sentences) by magistrates' courts were subject to automatic review by a higher authority, juvenile whippings were specifically excluded from this. The reason was put as follows by Centlivres JA in Ex parte Minister of Justice: In re R v Mayer [1943] AD 389 at 293:

"... to enable such sentences to be promptly carried out and thus to render unnecessary detentions in gaol of juvenile offenders [...] even for the short period which would normally have to elapse if their cases had to be submitted for review".

The South Africa Law Journal found this an unsatisfactory state of affairs:

Possibly the Legislature in excluding automatic review kept in mind the undesirability of deferring the infliction of corporal punishment unnecessarily; but then it has gone to the opposite extreme and prevented -- as far as automatic review goes -- its being deferred at all. There seems something to be said for a reconsideration of the position by Parliament.(4)

Another case arose in Hashe v Minister of Justice [1957] (1) SA 670 (Cape). A Coloured youth of 16 was sentenced to six cuts for theft:

The orderly immediately made out the punishment warrant which the magistrate there and then signed. The accused's attorney attempted to note an appeal. The magistrate denied that it was a proper notice in terms of the magistrates' courts rules and would not stay execution. The court orderly immediately thereafter inflicted the cuts. Further notice of appeal was subsequently lodged and the Supreme Court set aside the conviction and sentence. Application for leave to bring an action in forma pauperis against the Minister and magistrate for 300 damages was then made, but it failed.(4)

Anomalies of this kind were criticised more than once in the legal journals, but nothing was done to amend the legislation.

CANINGS IMPOSED ON REVIEW WHEN NOT ORDERED AT FIRST INSTANCE

When sentences were considered on review, on occasions canings were awarded at that stage even though they had not been imposed at first instance. This was regarded as showing leniency by not sending the offender to an institution.

For example: S v Barry, S v Chemaly and S v Thompson [1973] 3 SA 424.

Barry, 18, employed at Glassby's Motors, was a first offender who stole car parts and 860 pounds. He was described as "Quiet, modest, well mannered, reasonably hard worker. Employed by an architect as a draftsman. Exemplary." In the Magistrates Court he was given 12 months imprisonment, 6 months suspended.

Chemaly, also 18 and a first offender, was convicted of two counts of housebreaking. In the magistrates' court he was given 10 months' imprisonment, 6 months suspended.

Thompson was convicted of housebreaking and theft. He was given 8 cuts with the cane.

On appeal, the Judge observed:

"I think, in respect of both appellants, they should receive some additional punishment rather than a suspended sentence. [The Court] is competent to impose corporal punishment. Section 374(1) provides that males under 19 convicted of any offence may, in lieu of other punishment, or of a fine, or in addition to a fine, be sentenced to a maximum correction of not exceeding 10 cuts. I see no reason why a fine should not be conjoined with a juvenile whipping".

In relation to Barry the Judge said

"It is in the interests of society that he not go to prison, but he should receive a severe punishment. He earns 65 pounds a month. I sentence him to a moderate correction of 8 cuts together with a fine of 120 pounds, 3 months to pay".

Of Chemaly, the Judge said

"He has a good record. He is apprenticed to the motor trade. He earns 23 pounds a week. He is a courteous lad, punctual, and very good in his studies. He has a bright future and has a well balanced personality. I sentence him to a whipping of 8 cuts, a fine of 100 pounds, 2 months to pay".


FOOTNOTES

(1) Ellison Khan, "Crime and punishment 1910-1960", in Acta Juridica 1960, Cape Town, 1961.

(2) James O. Midgley, "Sentencing in the Juvenile Court", 1974 SALJ Vol.91.

(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) "Whipping of Juvenile: No Suspension of Execution on Noting Appeal?", 1957 SALJ Vol.74, p.154.


blob See also: Section 7: What caning of juveniles involved and Section 9: Interesting cases (juvenile)

blob Next: Section 5: "Prison discipline" canings


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