HOW WHIPPINGS WERE OUTLAWED IN SOUTH AFRICA
In the early 1990s, young – overwhelmingly black – offenders were still being sentenced to judicial, mandatory whippings as punishment for whatever it is they were supposed to have done.
Ellison Kahn, an advocate of the SA Supreme Court and, later professor of law at Witwatersrand University, in an article in the journal Acta Juridica in 1960, wrote: ‘In 1940 the total number of offenders sentenced to be flogged was 1,864.
‘By 1954 the number had risen to an annual total of 13,879.
‘By 1957, it had reached 18,442.
And yet, despite, the enthusiasm by magistrates to administer whippings as punishment, crime in the areas in which people were sentenced to be flogged did not drop.
Perhaps slightly embarrassed, the authorities tinkered with the Criminal Procedure Act, reducing the maximum number of strokes with a cane from 10 to seven.
Legal experts at various universities protested loudly about this continued use of corporal punishment. Even some magistrates complained.
But their protests fell on deaf ears….
For the next (almost) 50 years, whippings remained a shockingly popular form of punishment.
By the 1990s, the state, according to criminologists such as Don Pinnock, was carrying out 35,000 whippings of young people every year.
Kahn said: ‘[The] deterrent effect of compulsory whipping is nowhere to be seen. If this is so, its retention can only be attributed to some spirit of retribution or revenge.’
And other academic commentators described whipping as a weapon of an ‘authoritarian and oppressive regime’.
Section 276 of the Criminal Procedure Act allowed for the whipping of both adult and juvenile male offenders, while Section 294 focused on the ‘whipping of juvenile males’. I
When the question of corporal punishment, in the matter against a young man named Williams, was sent for review by a Western Cape magistrate, and which eventually reached the Constitutional Court, Justice Pius Langa said punishment had to respect human dignity.
He stated further that it was beyond doubt that the ‘institutionalised use of violence by the state on juvenile offenders as authorised by Section 294 of the Act is a cruel, inhuman and degrading treatment’.
In striking down the law, he added that ‘a culture of authority’ that legitimates violence by the state was incompatible with the interim Constitution.
• Floggings were not new to Southern Africa: in the 1860s, the Boer leader, Paul Kruger, publicly whipped Kgamanyane, the chief of the Kgatla, for refusing to instruct his men to work free of charge for Boers in the Saulspoort area.
• Sources: from: S v Williams – A springboard for further debate about corporal punishment by Ann Skelton