Chapter Six—
The Administration of Justice in a Racially Stratified Society

Rapid industrialisation and modernisation of South Africa in the twentieth century accelerated the integration of all sectors of the population into a common society. In a few decades great cities sprang up on what had formerly been stretches of open veld, and quiet colonial towns on the coast burgeoned into busy ports and manufacturing centres. The demand of the urban areas for food and labour soon destroyed whatever economic autonomy the rural regions had once possessed, and an extensive system of internal communications brought all the inhabitants of the sub-continent into contact with each other. Millions of black, brown and white farmers trekked by road and rail into the towns, whilst a reverse flow of manufactured goods proceeded into every nek and krantz of the countryside.

In this setting it was hoped by some and feared by others that increasing industrialisation and cultural assimilation would undermine colour consciousness and erase legal disabilities based on race. Some would have argued then, as many maintain today, that an industrial economy was essentially colour-blind, and that its labour requirements and marketing needs would inevitably subvert archaic racial attitudes. Liberal investors, politicians and lawyers anticipated that the growth of industry would promote the spread of skills and education throughout the population and pave the way for the extension of the franchise, the removal of the colour bar, the softening of law enforcement and the liberalisation of race feelings. The test of citizenship would be civilisation and not race. The British Parliamentary system as adapted to the Cape and then transferred to the North was seen to have implicit in it an intrinsically democratic character and inherent virtue, which, in the benign atmosphere created by industrial advance, would become increasingly attractive even to the most race-conscious members of the South African population. Finally, it was assumed that the existence of a court system modelled on British lines and staffed by a Judiciary imbued with a sense of independence and justice, would ensure to every individual irrespective of colour freedom under the law.

This chapter will examine the extent to which in the sixty years after Union all these expectations were contradicted.

In the constitutional sphere, the limited Parliamentary franchise of black and brown was progressively eliminated and in its place a variety of racial and tribally constituted bodies were created. At the same time, the entire surface area of the country was racially zoned, with the result that by 1970 approximately 85 per cent of the land was reserved to the whites, who made up less than 20 per cent of the total population. Legal machinery was created to enforce large-scale removals of black and brown; discriminatory notices proliferated until no public amenity was left unsegregated; penalties were attached to an ever-widening range of sexual contact between white and black or brown. An elaborate race register was created in order to ensure that every individual was allocated to a defined racial group and thereby made entitled to certain legal privileges and subject to specified legal disabilities. Controls over the movement, residence and labour of Africans were constantly extended, while exemptions from the operation of restrictive laws were continually removed. Job reservation was increasingly underpinned by statute, and such 'mixed' trade unions as emerged were compelled by law to divide along racial lines. Segregation in schools and universities was intensified. All the lawcourts save one were segregated, as were the prisons and police stations. What had formerly been regulated by geographical separation or social practice now became enforced by law, and the courts became more not less active in penalising breaches of differential statutes.

Thus in the sixty years after Union in 1910, the number of blacks charged under avowedly racial statutes rose elevenfold from 90,000 per annum to 1,000,000 per annum. In 1928 fewer than 50,000 Africans were charged under the pass laws, while forty years later nearly 700,000 were charged under these laws. The number of prosecutions for illegal occupation of land in the same period rose from 10,000 to more than 150,000.

Partly as a result of this growing enforcement of discriminatory legislation, the number of persons received into prison each year rose from less than 100,000 in 1911 to nearly half a million in 1967. A comparison with countries that had a similar penal, though different social, system, reveals that in the early 1960s more than twice as many Africans were received under sentence in the prisons of South Africa (total population 18 million) as persons of all races were received under sentence into the prisons of England and Wales, Tanganyika, Kenya and Ghana combined (total population 69 million). So great has been

the recent incarceration of Africans in South Africa that if the level at the end of the 1960s is maintained, more than one African man in two can expect to be jailed in the 1970s.

Racial factors have also played a part in the continuing and in some respects increasing severity of punishments handed down by the courts. Thus in the first forty years after Union a total of 100,000 offenders were sentenced to 900,000 strokes, while in the next twenty years 200,000 offenders were ordered to receive 1,200,000 strokes; although the average number of strokes per offender nearly halved, the total number of strokes actually inflicted each year more than doubled. Similarly, the number of persons executed rose from less than thirty per annum in the first decade after Union to nearly one hundred per annum in this last decade. The number of crimes carrying the death sentence increased from three to nine in the same period, and in the early 1960s South Africa was responsible for 47 per cent of all judicial executions reported to the United Nations for a five-year period.

The remainder of this chapter specifies the statutes and sets out the statistical data on which the above propositions are based. It may accordingly be of special interest to criminologists, academic lawyers, sociologists and social historians, but of less interest to the general reader, who may prefer merely to glance at Tables 2, 7, 8, 9, 12, 15 and 20 and to pick out the passages which quote the rationalisations advanced by those in authority for the increased use of imprisonment, whipping and the gallows.

The Franchise

At the time of Union in 1910 some 20,000 or 15 per cent of all Parliamentary voters in the Cape were black or brown. Although they had never managed to elect one of their number to the Cape Legislature they constituted a considerable force at election time, especially since the rest of the electorate was fairly evenly divided between Englishmen and Afrikaners. The South Africa Act, 1909, which established the Union of South Africa, entrenched their voting rights, but did not extend such rights to the North. A special section of the Act provided that none should be removed from the voters roll on account of race except by a law passed by a two-thirds majority of the House of Assembly and the Senate sitting together.

In 1930 the voting power of Africans and coloured persons in the Cape was effectively halved when the vote was extended to white women in South Africa.

In 1936 African voters were by the requisite two-thirds majority removed from the common voters roll and placed on a special roll which entitled them to elect three white persons to the House of Assembly and four to the Senate, which between them had a total of nearly two hundred members.

In 1956 coloured voters were placed on a separate voters roll which entitled them to elect three white persons to the House of Assembly. The necessary two-thirds majority was obtained after a long constitutional battle culminating in the reconstitution and enlargement of the Senate.

In 1959 African representation in Parliament was abolished altogether.

In 1968 coloured representation in Parliament was abolished altogether.

Thus the Parliament elected in 1970 contained no representation, either direct or indirect, of black or brown South Africans. Pursuant to the policy of apartheid or separate development, the 80 per cent of South Africans who were disfranchised were provided with various councils. Nine separate tribally-based authorities were established in the rural reserves with varying degrees of local autonomy to represent the African population of South Africa; a Coloured Representative Council was created to act as official spokesman for the coloured people; and an Indian Advisory Council was appointed to consult with the Government on matters affecting people of Indian descent.

Racial Legislation

At the time of Union differential pass, liquor and tax laws already existed throughout most of South Africa. One of the first enactments of the new Parliament was a law which regulated recruitment of African workers and made breach of service contracts by Africans a criminal offence. This was soon followed by a statute which prohibited Africans from acquiring an interest in land outside of the tribal areas; the eventual effect of this law as amended was to prohibit Africans from owning or leasing property in 87 per cent of South Africa's surface area.

In the 1920s Africans living in the urban areas were obliged by statute to live in locations subject to the control of white superintendents. The Governor-General was declared to be Supreme Chief of all Africans with power to rule by proclamation. A special court system staffed by white officials was established to hear civil disputes involving

African litigants and to try Africans under differential legislation. Taxation of Africans on a capitation basis was made uniform throughout the country, and the failure to produce tax receipts on demand was made a criminal offence. Sexual intercourse between black and white was made illegal throughout the country.

In the 1930s African voters in the Cape were removed from the common voters roll.

In the 1950s pass laws inherited from the pro-Union period were consolidated and extended to African women; exemptions from the operation of these laws were cancelled and Africans in the Cape were subjected to the same controls as Africans in the rest of the country. The education of Africans was taken away from the missions and placed under total Government control. The authorities were given extra powers to evict Africans from land and to compel them to live in designated areas. Africans were prevented from belonging to registered trade unions, and strikes by Africans were made unlawful.

In the 1060s Government officials were given extra powers to control the residence and employment of Africans. The African National Congress and the Pan African Congress were declared unlawful organisations.

During these decades Africans were also adversely affected by a number of laws which discriminated generally between white-skinned and dark-skinned persons. These will be mentioned below. The only disabilities to be repealed during all this time were those relating to possession of liquor. The Government contends that the creation of tribal authorities in the 1960s opened the way to the exercise of full citizenship rights by Africans in their separate tribal homelands.

General colour bar laws were passed from time to time to enforce segregation between whites on the one hand and Africans, coloured persons and Indians on the other. In the early years after Union these statutes referred mainly to employment; in the 1950s statutory authority was given for the reservation of public amenities on a separate and unequal basis; a national race register was compiled in terms of a race classification law; intermarriage and any form of sexual activity between white persons and black or brown persons was prohibited; black and brown students were excluded from the Universities of Cape Town and the Witwatersrand; all urban and rural areas were racially zoned for purposes of ownership or occupation; the reservation of jobs on racial lines was extended, and 'mixed' trade unions were split on

racial lines. In the 1950s and 1960s major African political organisations were proscribed, the non-racial Communist Party and Liberal Party were forced to disband or go underground, and the multiracial Progressive Party was compelled to shed its black and brown members.

Thus by 1970 legal segregation was more extensive and systematic than it had been in 1910. Instead of the Cape policies being extended to the rest of the country, the rigid segregation of the North was extended to the Cape. African women throughout the country were made subject to the same controls as their menfolk, and the class of Africans exempted from the pass laws-only partially exempted, since in practice they had to carry documents-was abolished. At the same time the legal disabilities of coloured people and Indians were considerably increased. Segregation notices appeared on buses, trains, taxis and ambulances, on park benches, beaches, sportsfields and swimming baths, in libraries, concert halls, museums and zoos, in post offices, telephone kiosks, railway stations and urinals. Interracial conception was forbidden, interracial marriage was prohibited, the sick were treated in separate hospitals and the dead were interred in separate burial grounds.

The old policy of segregation, which operated unevenly and without plan, gave way to the new concept of apartheid, which was enforced in a total and systematic fashion. There was no essential break between the old and the new, in fact it was this very continuity which was novel, since everywhere else in the world legal differentiation according to race was being formally repudiated. Apartheid was the modernised form of segregation, justified by Scripture, adapted to industrialisation, and implemented by the formidable machinery of a contemporary state.

Law Enforcement and Race

The differential laws referred to in the previous section were not self-enforcing. It is not surprising, therefore, that an increase in what will be referred to as race-statutes was associated with an increase in the extent to which the courts were involved in the maintenance of segregation. This section will examine in some detail the way in which the penal scene was affected by race, and, conversely, the manner in which the Judiciary assisted in regulating race relations. In order to introduce this section, a synoptic view of some of the major areas of penal development in the years since Union is given in Table 2.

The figures given in Table 2 will now be considered separately, in detail and with reference to appropriate sources.

i—
Total Prosecutions

In the years from 1910 to 1967 the total South African population increased slightly more than threefold, the authorised establishment of the South African Police increased approximately fourfold, and the number of persons charged in court increased approximately eightfold. Table 3 gives a summary of the number of police and number of prosecutions in relation to the total population for nine selected years starting with 1912 and ending with 1967.

It will be seen from Table 3 that the total number of prosecutions has risen dramatically though not regularly in the years since Union. The only two years in which a drop was recorded were 1942 and 1962; in 1942 a depleted police force was extensively engaged in security operations against pro-German Afrikaners, while in 1962 an increase in

security work against rebellious Africans coincided with the cessation of large-scale liquor raids.

ii—
Prosecutions in Terms of Race-Statutes

The early Annual Reports of the Commissioner of Police were far more voluminous and revealing than the modern ones, but unfortunately not always complete. Thus the report for the year 1911 gave a great amount of uncollated information in relation to prosecutions brought in the Transvaal, the Orange Free State and Natal, but far less complete figures for the Cape (UG 62/1912). A collation of the information provided in relation to prosecutions or arrests for particular crimes presents the following Provincial picture:

In the Transvaal 120,000 persons were sent for trial, of whom 56, 000 were charged with race-statute offences, 16,000 with contravention of

[1] Based on Annual Report of Commissioner of Police, for year ended 30th June 1968, RP 47/1969. The figures for 1967 relate to the year ended 30th June 1967, and those given in the last two columns for that year were calculated by the writer on the basis of information in the Report for the year ended 30th June 1967, RP 40/1968. Figures for the total population are to the nearest 5, 000 and for the number of persons prosecuted to the nearest 1,000.

municipal regulations, 11,000 with drunkenness, 9,000 with offences against property, and 6,000 with offences against the person.

In the Orange Free State 21,000 persons were prosecuted, of whom 5,000 were charged with race-statute offences and 2,000 with theft.

In Natal 50,000 persons were prosecuted, of whom 16,000 were Africans charged with race-statute offences, and 4,000 were Indians charged with similar offences.

In the Cape , the Urban Police made 9,000 arrests, of which 500 were made under vagrancy laws and only I under an avowedly racial statute. The Mounted Police made 8,000 arrests, of which 1,000 were under the masters and servants laws, 500 for trespass, 500 under the liquor laws and 200 for pass offences. The Kimberley Police made 4,000 arrests, of which 200 were for pass offences and 100 for liquor offences. Thus these three separate Cape police forces were between them responsible for 21,000 arrests, of which 3,000 were for infringements of what may broadly be referred to as race-statutes. A fourth force, the Rural Police, was responsible for bringing a further 35,500 accused persons before the courts. How many of these persons were charged with more than one offence is not revealed, nor what the offences were with which they were charged. On the assumption that the Rural Police were responsible for the same proportion of prosecutions in terms of racestatutes as were other police forces in the Cape (i.e. one in seven) it may be estimated that in the Cape at least 56,000 cases were brought to court, of which at least 8,000 were based on race-statutes.

The above figures are expressed in tabular form (Table 4) together with an indication of the proportion that race-statute prosecutions formed of the total number of prosecutions in each province.

The figures in Table 4 indicate that the Transvaal led the field both in terms of the total number of prosecutions brought and in terms of charges laid under race-statutes. Not too much reliance may be placed on the Cape figures, since they are only estimates,^[2] but the low figures for the largely rural Orange Free State contrast strongly with the high figures for the industrialised Transvaal. When the whole of South Africa became more industrialised, the pattern of prosecutions throughout

[2] The Cape figures were probably higher than those shown. The report for 1916 showed that the number of persons arrested in that year were: Cape 82,000; Natal 54,500; O.F.S. 23,000 and Transvaal 120,000. UG 42/1917. Although the reports for the years after 1911 gave reliable totals, they did not break down the information so as to permit a picture of the different kinds of prosecution being obtained.

the country came increasingly to resemble that of the Transvaal in 1911.

From the 1920s onward the police reports presented their information in a terse but continuous manner. Data were no longer supplied

[3] Based on Annual Reports for 1927, 1947 and the Year Ended 30th June 1967. From 1963 onwards the reports covered the period from mid-year to mid-year. Total figures were no longer given for statutory offences regarded as less serious, but information was supplied as to the main offences prosecuted and what percentage of all prosecutions these represented, and from this it is possible to calculate the total number of prosecutions for all offences. The last two columns in Table 5 were compiled by the writer on the basis of data in the above mentioned reports. The figures given in subsequent tables for years after 1963 refer to the 12-month period ended 30th June of the year mentioned.

on a Provincial basis, but figures were given of the main kinds of prosecution brought throughout the country, and it became possible to calculate the total number of charges for each year. On the basis of these figures the writer has calculated the growth rate for all prosecutions and for race-statute prosecutions from 1927 to 1967, as represented in Table 5.

The figures in Table 5 establish that the total number of prosecutions increased at a markedly greater rate than did the total population, and that the number of race-statute prosecutions increased at an even faster rate. Roughly speaking, during a period of forty years when the total population increased by about 2 1/2 times, the total number of prosecutions increased by about 4 1/2 times and the total number of specifically race-statute prosecutions increased by about 5 1/2 times. In proportional terms, the percentage of race-statute prosecutions rose from 33 per cent of the total in 1911 to 44 per cent in 1967.

The term race-statutes has been used here to refer to five main groups of laws, namely those relating to taxes, passes, liquor, masters and servants and trespass. The tax laws penalised failure by African men to produce on demand annual receipts for poll tax. The pass laws referred to documents of identity and permits relating to work and residence, all of which had to be produced on demand, as well as to curfew laws and location regulations, the latter including such crimes as failure to pay rent. The liquor laws rendered it a criminal offence for Africans to brew or possess so-called kaffir beer or so-called European liquor. The masters and servants laws applied almost invariably to white masters and black or brown servants, and related mainly to indentured farm-workers. The trespass laws were used almost exclusively to prosecute Africans found without permission on land or premises owned by whites. Although the total figures for prosecutions under race-statutes increased rapidly over the years, the figures for each of these five main categories varied considerably. The changes in respect of each of these five groups from 1928 to 1968 are reflected in Table 6.

Table 6 demonstrates that a vast increase in the number of prosecutions for tax, pass and trespass offences was associated with a marked drop in the number of prosecutions for liquor and masters and servants offences.

A special word should be said about the decline in prosecutions under the liquor laws. These had originally been prompted as temperance measures, but they also helped perpetuate the concept of Africans as a subordinate people requiring special controls. Whereas the drop in the

number of prosecutions brought under the old and cumbersome masters and servants laws was gradual and steady, the decline in prosecutions under the liquor laws in fact only took place after there had first been a steep rise not reflected in Table 6. Liquor law prosecutions rose from 33,000 in 1928 to over 200,000 in the late 1950s, but plummeted when the liquor laws were amended in 1961 to permit Africans to buy liquor in bottle stores. Thus prosecutions under the liquor laws rose from 7 per cent of all prosecutions in 1927 to 11per cent in 1948 and dropped to 2 per cent in 1967. For decades the prohibition of liquor for Africans had been regarded as fundamental to the maintenance of social peace and the combating of crime in South Africa, yet the eventual abandonment of such prohibition brought about no noticeable change in either the social picture or the crime situation in the country. The police had long felt uneasy about the administration of the liquor laws, partly because of the corruption they had engendered in the police force itself. Thus, the Police Commission of Enquiry of 1937 commented that although the prohibition laws did much "to save the natives from the disaster which unrestricted liquor supply would inevitably have brought about, and preserved other races from appalling resultant dangers . . . thousands of Europeans, natives and coloured persons were degraded and ruined in the process of putting the law into force" (UG 50/1937). A strong wine farmers lobby had also long urged the ending of prohibition, but it was only after the shootings at Sharpeville in 1960 that the law was actually changed.

The drop in prosecutions for liquor and master and servant offences was small in comparison with the increase in prosecutions under the other race-statutes. Thus prosecutions for tax offences rose 4 times in the forty years, for pass law offences 15 times and for trespass 16 times.

Prosecutions under the pass laws in fact rose so steeply that they increased in average from less than 1,000 per week to more than 2,000 per day. Thus statutory controls over the African people were intensified rather than weakened with the growing economic progress of the country. The archaic masters and servants laws which had served a predominantly rural economy were superseded by modernised pass laws designed for an industrialised society, and the liquor laws which were irrelevant to the economy or the administration were jettisoned.

It has already been mentioned that by 1967 prosecutions for racestatute offences amounted to approximately 44 per cent of all prosecutions brought. For purposes of comparison the figures given in the annual report for the other main offences prosecuted in that year, namely traffic offences, drunkenness and drugs, assaults and common theft, are given in Table 7.

Table 7 demonstrates that prosecutions for race-statute offences substantially exceeded the combined figures for motor vehicle offences, drunkenness and drugs, assaults and common theft. The pass laws alone accounted for approximately five times as many prosecutions as assault, and nearly ten times as many as common theft, the two most significant common law offences.

By way of comparison, approximately 2 million persons were prosecuted in 1969 for all offences in England and Wales, which have a population about 2 1/2 times that of South Africa. One million of these prosecutions related to motoring offences, 200,000 to common theft,

85,000 to drunkenness, 65,000 to assaults, and 60,000 to violent theft. Thus more persons were prosecuted in South Africa for race-statute offences than all persons were prosecuted for non-motoring offences in England and Wales (Criminal Statistics ).

iii—
Race Laws and Sex

The increase in race-statute prosecutions has been brought about through the more rigid enforcement of old statutes rather than through the creation of new offences. Penal sanctions were invariably attached to new segregation measures, but they were invoked relatively rarely. Thus prosecution under the Group Areas Act, 1950, and for breach of segregation rules relating to public amenities are not frequent. Nevertheless, the social significance of the new race-statutes was considerable, and the ultimate threat of penal sanctions ensured general compliance with them.

One field of increasing intervention by the law was in sexual relationships between persons of different colour. In general, pre-Union statutes prohibited sexual intercourse between white women and black men, the severest penalty being in Natal where 25 years' imprisonment could be imposed (Simons-African Women ). Prosecutions appear to have been rare, and in the first years after Union official attention was focused on unwilling interracial intercourse rather than on intercourse by consent. Thus the police report for 1911 gave figures for sexual assaults committed by black or brown men on white women (Natal 52, Transvaal 40, Cape 27 and Orange Free State 3), to which the term Black Peril was applied. The Commissioner for Police observed that the Black Peril should be most prevalent where Africans were the most numerous, and yet in fact in the populous Cape Province, "where the coloured men and the native who is a registered voter is in most respects on terms of equality with the white man (andwhere) consequently far more cases of the kind under discussion might be expected", the prevalence was the lowest. His conclusion was that Black Peril outrages were due mainly to the existence of the houseboy and the illicit liquor traffic (UG 62/1912).

Five years later a Deputy-Commissioner recommended that a Union statute be passed forbidding the sale of pictures of nude statues or paintings, "it being felt that the exposure of pictures representing nude white women incites coloured men and natives to sexual offences" (UG 42/1917). The Immorality Act of 1927, however, placed no prohibition upon pictorial nudity, but did penalise sexual intercourse

between 'Europeans' and 'natives' of the opposite sex. The Immorality Act of 1950 extended the prohibition to sexual intercourse between 'Europeans' and 'non-Europeans', and the Immorality Act of 1957 further forbade sexual activity falling short of intercourse, and at the

same time increased the penalties to a maximum of seven years' imprisonment.

The number of convictions during selected years from 1928 to 1966 for breaches of the colour bar provisions of the Immorality Acts is given in Table 8.

These totals are small in comparison with those for prosecutions in terms of other race-statutes, and standing on their own fail to convey the importance attached to the sexual colour bar in South African life. Whereas prosecutions under the pass, tax and trespass laws usually pass unnoticed save by those directly affected, Immorality Act trials are highly publicised. The more prominent the white person involved and the more salacious the evidence, the wider the press coverage. A secretary to the Prime Minister, a Minister of the Dutch Reformed Church, lawyers, businessmen, academics, policemen and farmers have all been hauled before court for loving their black neighbours too well, and almost every year the newspapers carry reports of whites who have committed suicide rather than face the ignominy of such a charge.

It is generally agreed that only a small amount of interracial sexual activity is detected by the police, yet the existence of the Act and the bringing of exemplary prosecutions helps to promote the concept that the maintenance of racial purity is the ultimate end of government. A sociologist has observed that when, as in South Africa, status is closely linked to racial type, any assimilation that blurs the obvious physical differences is seen as a threat to the social order. "The dominant group will apply strong pressure to prevent coition between its members and the underlying population." White tribalism, he adds, contributes its quota to the list of sexual taboos (Simons).

Yet if the preservation of white purity is seen as the primary objective of the Immorality Act, in practice it is white men who seek sexual intercourse with black and brown women rather than black and brown men who attempt intimacy with white women. Figures in Police Reports for prosecutions under the Immorality laws reveal that very few white women have been involved; thus in 1928 a total of 78 white men and African women were convicted, as compared with a total of only 11 white women and African men, while in 1966 out of 488 persons convicted only 4 were white women and 13 black or brown men.

iv—
Race Laws and Residence

One of the immediate consequences of industrialisation in South Africa was the creation of large multiracial urban centres. As industry expanded and the population of the cities increased, so did the Legislature increase its measures to segregate residential areas according to racial criteria. Far from declining with the onset of modernisation, racial zoning became more extensive and grew to involve ever greater sections of the population. In the past two decades the machinery of the

law has been invoked to compel the removal of hundreds of thousands of persons from one area to another on racial grounds. The removal of Africans was accomplished by a combination of many statutes, some old and some new, and it is difficult to compile accurate figures for the total numbers of persons involved. One estimate put the figure of enforced removals of Africans during the decade 1960 to 1970 at 900,000. The enforced removal of Indians and coloured persons, however, was accomplished almost solely by one statute, the Group Areas Act, 1950, the operation of which has been more precisely documented.

The basic aim of the Group Areas Act was to divide the country into separate racial areas for ownership and occupation. In practice the Act was used mainly to force Indians and coloured persons living in areas close to the centre of towns and villages to remove to the outskirts; while being ideologically satisfying to the white electorate, these removals also proved to be economically advantageous to the Government and to serve its security ends. The differential manner in which the law was implemented appears from Table 9.

Table 9 reveals that for each white householder obliged by law to make way for brown people, almost one hundred brown householders have been compelled to make way for white people. On the assumption that each family consisted of five members, only 1 in 570 whites in South Africa would have received orders to move, compared with approximately 1 in 6 coloured persons, nearly I in 3 Indians and more than 1 in 2 Chinese.

v—
Increase in Prison Population

The size of the prison population in any society is an important index of the extent to which the courts are used as instruments of social control. A growing prison population indicates either an increase in conduct defined as criminal, or an improvement in law enforcement machinery, or the emergence of a sterner judicial attitude towards punishment. In South Africa all three factors appear to have operated in the years since Union to increase the size of the country's prison population. The growth in the total number of admissions each year is given in Table 10, which refers to selected years from 1912 to 1969.

Two comments should be made about the figures in Table 10. First, the growth in total admissions and admissions under sentence greatly exceeded the growth in total population, the ratio being approximately 5:3. Second, the growth in unsentenced prisoners who were subsequently not returned to prison was even greater. Thus in the late 1060s the already vast prison population was added to by more than 150,000 persons each year who were either refused or unable to raise bail, and

[4] Total populations from Police Reports; admissions to prison from Reports issued in respect of each year by the Director of Prisons; percentage calculations by the writer. From 1963 onwards the reports by the Director of Prisons related to the year ended 30th June. No allowance is made in any of the figures relating to admissions for the fact that one person might have been admitted more than once in one year in respect of separate convictions.

who were subsequently acquitted or sentenced to a non-custodial order (Prisons Reports).

A major defect in the published South African judicial statistics is that they do not relate prosecutions to imprisonment. The outcome of prosecutions is not given, nor is the cause of imprisonment. Prisoners are classified in the Annual Reports of the Director of Prisons according to race, sex and length of sentence, but not according to the offence they have committed. Figures are not even provided of the number of persons received into prison because of inability to pay fines; when the Penal Reform Commission conducted a special investigation into the question over an eighteen-month period in the early 1940s, it was shocked to find that out of more than 100,000 prisoners at eleven major urban centres, no less than 82 per cent of African prisoners, 87 per cent of coloured and Indian prisoners and 64 per cent of white prisoners were admitted because of non-payment of fines (UG 47/1947 p. 171).

A very large proportion of persons admitted to prison each year go there to serve sentences of only a few weeks or a few months. Table 11 gives a breakdown of admissions for the year ended 30th June 1069, according to race, sex and length of sentence.

According to Table 11, out of slightly less than 500,000 persons received as convicts into prison during the year, as many as 460,000 were sentenced to six months or less. Furthermore, nearly half the prisoners sentenced to less than six months were first offenders.

As long ago as 1939 the then Director of Prisons stated in his annual report that short term sentences were seldom effective, and that they had been found to be neither reformative nor deterrent. The Penal Reform Commission of 1947 made similar observations, and in 1953 the annual prisons report emphasised the uselessness of short-term imprisonment from the point of view of training of prisoners. In recent years a Cape judge has spoken out strongly in favour of reviewing penal policy in South Africa and especially of reducing the number of petty offenders being sent to prison (Jan Steyn). Despite these authoritative opinions, the annual intake of short-term prisoners shows no sign of diminishing, and in a recent interview the Minister of Justice and Prisons declared that short-term imprisonment was 'here to stay'. In his opinion there was no alternative, because "after all, the courts cannot allow people to commit offences with impunity. Once a man is convicted of a minor offence he is given the choice of either a fine or imprisonment. If he is unable to pay the fine he must go to jail" (P. C. Pelser, Rand Daily Mai ,, 30/6/1965).

In this connection a comparison with penal development in England provides a significant contrast. Table 12 compares the trend in relation to short-term imprisonment in England and Wales on the one hand, and South Africa on the other: the selected years are 1913, 1938 and 1968.

Table 12 shows that during the period 1913 to 1968 the number of short-term prisoners declined by approximately 95 per cent in England and Wales and increased by nearly 400 per cent in South Africa. It was this reduction in England and Wales that was mainly responsible for the drop there in annual admissions from 138,000 in 1913 to 36,000 in 1068.^[5]

What happens to the hundreds of thousands of persons admitted to prison for short terms in South Africa each year? Their entry into and exit from prison is achieved with such rapidity that although their total numbers are great, on any particular date they account for a relatively small proportion of persons in custody, as appears from Table 13.

The last column in Table 13 shows that out of 89,000 persons in custody on a particular date, 14,000 were awairing-trial prisoners, 55,000 were serving sentence of over 6 months, and only 20,000 were serving sentences of 6 months and under.

The Prisons Department has in fact evolved two major techniques for

[5] The problem of the short sentence has not been confined to South Africa. In the late 1950s in Australia and New Zealand an even greater proportion of prisoners seemed to have been short term (Rhoodie).

dealing with the large numbers of short-term convicts sent to prison each year. The first is to hire out such prisoners to farmers at nominal charge and the second is to release prisoners on parole subject to their working on farms and gardens at local wage rates (Prisons Reports for 1943 and 1952; UG 47/1947).

The hiring-out system was started in 1932 when the charge to farmers was 6d. per convict per day; various abuses were exposed, and the system was modified, the charge to farmers being raised to 9d. a day. In 1952 more than 40,000 prisoners serving sentences of less than four months imprisonment were hired out to farmers under this scheme, which the Department extolled for relieving pressure on the prisons "meeting in large measure the pressing need for farm labour, and providing the prisoner with a healthy out-door occupation". In the early 1950s the Prisons Department invited farmers' associations in various parts of the country to construct farm jails to which medium-term prisoners might be sent, and by 1956 the movement of prisoners from the cities to the countryside had become so extensive that the Director of Prisons was able to report that 37 per cent of all prisoners worked extramurally-mainly for farmers, in the highly productive areas where free labour was in short supply. The remaining 63 per cent were employed on State use, the hiring out of convicts to mining companies having been finally ended in 1955 (Reports for 1933, 1955, 1956).

The release of short-term prisoners on parole proved to be another boon to persons owning land in the neighbourhood of prisons, since the usual condition of parole was that the prisoner remain in the employ of a particular landowner for the unexpired portion of his sentence. Thus in the year ended 30th June 1960 more than 100,000 short-term prisoners were released on parole or probation. It should be mentioned that in practice white prisoners are not amongst those sent to perform menial tasks on privately owned farms or gardens. Segregation runs right through the prison system in South Africa, and results in black and white prisoners receiving different amenities and rations in physically separate institutions. A leading penologist explained, presumably without intentional irony, that "placing the Bantu offender in a correctional institution for people of his own group and race not only recognises existing ethnological differences but is in accordance with the national policy of differential development" (Rhoodie).

The incidence of imprisonment is not the same for all race groups in South Africa. If the figures relating to race in Tables 11 and 13, which deal respectively with annual admissions under sentence and persons

in custody on a particular date, are compared with the total population of each race group in South Africa, it becomes clear that there are a disproportionately low number of white and Asian prisoners (see Table 14).

Amongst the many criminological questions which remain unexplored in South Africa is the problem of why so many coloured persons and so few Asians find their way to prison each year. Both groups are affected by poverty, overcrowding and race discrimination; a possibly relevant factor is the extent to which strong family and community bonds amongst the Indians help to cushion the effect of adverse social and political conditions.

The high proportion of Africans in prison is interpreted by some as evidence of Government repression and by others as proof of popular lawlessness. Prosecutions brought under race-statutes are undoubtedly responsible for a large number of Africans going to prison, but common law offences also make their contribution. Thus in the early 1960s more than 70,000 Africans were convicted per annum for offences against property and approximately the same number for offences against the person (Penal Statistics, 1949–1962). Nearly a thousand murders are committed in Johannesburg each year compared with about 60 in London and about 200 in the whole of the United Kingdom.

[6] The total size of each race group was based on population estimates by Bureau of Statistics for mid-1967, quoted in SAIRR 1967 p. 19. The percentage calculations are by the writer, rounded off to the nearest 0.5 per cent, except for the figures for Asian prisoners which are to the nearest 0.1 per cent.

There are indications that many African employees regard pilfering as a legitimate means of supplementing low earnings, and the courts constantly reiterate their determination to suppress such 'betrayals of trust' with severe sentences. Thus theft from an employer, even of the most inexpensive article, is almost invariably punished with a sentence of several months imprisonment; first offenders are not exempt, and not long ago two Transvaal judges confirmed on review sentences of six months imprisonment passed on Africans who had respectively stolen a packet of matches and a toilet roll at their places of work (1964 SALJ, 113).

Hardly any sociological analysis has been attempted to explain the extent of common law crime amongst Africans. To adherents of racial theory it is self-evident that Africans have an ethnic propensity towards violence and plunder, and criminal statistics are seen merely as confirming what every white man is considered to know from common experience. In the view of such theorists, the only realistic approach towards crime in South Africa is to have strong laws, a strong police force, a strong Judiciary and escape-proof jails. A common variant of this attitude is that Africans in their tribal or 'natural' state are basically law-abiding, but that they are unable to resist the temptations of city life and collapse into lawlessness once they enter the white man's world. Thus a Deputy-Commissioner for Police declared in 1917:

When one remembers the overwhelming majority of natives in the Division compared with Europeans, and their extensive facilities for wrongdoing, it must be confessed that the native is a wonderfully law-abiding subject. The native attitude towards the white is almost one of profound indifference, closely bordering on insolence, but usually it is only in the towns that over-civilisation jeopardises and impairs the native's uniform good conduct and obedience to the law.

A Commissioner of Police agreed that 'raw natives' were being debauched by the city environment, and pointed the moral that the answer lay in more compounds and closer controls (UG 42/1917; UG 62/1912).

Critics of racial theory, on the other hand, attribute lawbreaking to the very controls that are supposed to counteract it.^[7] They point to the

[7] The Penal Reform Commission of 1947 adopted a rather eclectic approach in which all viewpoints were manifest. Cf. UG 47/1947, section on Race and Crime, pp. 3 et seq., and references to 'barbarism', p. 64. An Inter-Departmental Committee Report published in 1942 placed strong emphasis on poverty and broken homes as a causative factor in relation to crime amongst Africans.

disruption of communities and the breaking up of families by the law, and to the blatant inequalities of wealth and opportunity that attach to race in South Africa, and argue that what appears to the racist to be an inherited deficiency in the personalities of blacks is in fact a reaction to deficiencies in society. They agree that traditional African societies in southern Africa were generally fairly free of crime (whether defined in traditional or modern terms), but state that the only realistic solution to contemporary law-breaking is to allow Africans full rights and participation in a common society rather than to try to restore a past that vanished irretrievably with the destruction of the tribal armies and the dispossession of the tribal lands.

In view of the ever-increasing flow of Africans into prison it is perhaps ironical that for many years the authorities regarded the very idea of imprisonment of Africans with uncertainty. Some Cape judges were said to pass moderate sentences on Africans because "natives pine so much in captivity". More recently a prominent South African judge stated that solitary confinement bore particularly harshly on Africans because they did not have much to contemplate (Van den Heever). Other jurists, however, felt that "to natives of the class who fill our jails, to be well fed and clothed is a mild form of punishment of which they can bear a considerable amount". One writer went so far as to say that Africans positively enjoyed going to prison; entirely misconstruing this institution of Western civilisation, they proudly wore their clothing embroidered with the Queen's coat of arms, and felt themselves to be lodged in a splendid building which would give them status in the eyes of their peers (Seymour). More recently a Director of Prisons wrote that unsophisticated Africans had alarming anticipations of prison, but found their fears dissipated by reality, so that imprisonment lost its deterrent value. In his view, the answer was to keep petty offenders out of prison if at all possible, and to subject them instead to corporal punishment. "The brutalising effect of strokes at any rate on natives has been grossly exaggerated, and there is no doubt that whipping is far less harmful than a term of imprisonment, which may completely demoralise the person and give him a trend towards a criminal career" (UG 38/1932).^[8]

[8] None of the five above mentioned statements was made by Africans or purported to be based on what African prisoners themselves had stated to be the impact of imprisonment upon them. Cf. The East African Experience of Imprisonment by R. E. S. Tanner, in (ed.) Milner, based on a survey conducted amongst prisoners, especially at pp. 295 and 314.

"Whether or not imprisonment deters Africans from criminal careers or predisposes them towards such careers, the scale of incarceration of Africans has become very large by international standards. Table 15 provides a comparison between the annual admission rates in the early 1960s of prisoners in South Africa, England and Wales, Tanganyika, Kenya and Ghana. It should be remembered that more than three-quarters of the South African prisoners were African.

According to the figures in Table 15, in absolute terms nearly six times as many South African convicts went to prison as convicts in England and Wales, while in relation to the total population of the country, the proportion was nearly fifteen times as many. The absolute figure for South Africa was also three times that of the combined total for Tanganyika, Kenya and Ghana, while the relative figure was four and a half times as great.

By the end of the 1960s the disparity between the South African and the English and Welsh totals had become even greater, as appears from Table 16.

[9] South Africa-prisons reports for year ended 30th June 1964; England and "Wales—People in Prison , Command 4214, HMSO, November 1969, p. 14 (figures for Borstals and detention centres are included); Tanganyika-J. Read in (ed.) Milner, p. 130 (the latest figure given is for 1962); Kenya-J. Read ibid , p. 129; Ghana-Robert E. Seidman and J. D. Abaka Eyison in (ed.) Milner at page 87 (footnote 72).

Table 16 establishes that by 1968 the absolute total of South Africans going to prison under sentence was ten times that of England and Wales, while the relative figure was approximately fifteen times.

Included in the 1968 South African figure of nearly half a million convicts admitted to prison were 416,000 Africans (350,000 men and 66,000 women; a further 4,000 infants at breast were admitted, and nearly 200 children were born in prison).

Thus by the end of the 1060s approximately 350,000 African men were being received into prison under sentence each year, and approximately 150,000 of these were first offenders (Prisons Reports). If this level of imprisonment is maintained in the 1970s, then according to the writer's calculations within the decade one African man in three will have served a sentence as a convict in South Africa,^[11] and if remand prisoners not subsequently admitted as convicts are included as well,

[10] South African figures from annual prison reports; English and Welsh figures from People in Prison ; a subsequent jump of nearly 10,000 in the next three years has caused considerable concern in England.

[11] Calculations based on (i) Total African population in 1969 of approximately 14 million, 7 million of whom were male; expected to increase by about one-third over the whole of the decade, (ii) More than 1,500,000 African men first offenders being imprisoned as convicts in the decade; and (iii) Fifty per cent of African males being under the age of 18 at any particular time (cf. Native Affairs Department report for 1963, RP 41/1965, p. 2).

probably one African man in two will have been in jail.^[12] If the 1960s rate of increase is maintained, then more than half the adult African male population will have served sentences as convicts, and well over half would have spent some time in prison.

It was mentioned earlier that the great majority of sentences served by Africans were for relatively short periods. Nevertheless the core of long-term prisoners has grown at a rapid rate, and is partly responsible for the increase in the average daily prison population in South Africa. Table 17 charts the increase from 1912 to 1969 in the average number of persons in custody each day.

[12] In the year ended 30th June 1969, only 97,000 out of 258,000 awaiting-trial prisoners were subsequently admitted to prison as sentenced prisoners. It is not known how many of the remaining 161,000 prisoners were African male first offenders, but the figure should not be less than thal for African male first offenders amongst sentenced prisoners, namely about 30 per cent. This would add more than half a million to the total for the decade, bringing it up to more than 2 million. Persons detained in police lock-ups and not subsequently sent to prison would not appear to be included in any of these figures.

The figures in Table 17 demonstrate that during the period 1912 to 1969 the daily average prison population increased at nearly twice the rate of the total population of South Africa. The increase in daily average prison population was also greater than the increase in total admissions, in the ratio of approximately 5: 4. This latter ratio suggests that there has been an increase in the average length of sentence served, due either to a reduction in paroles or remissions granted or to an increase in the length of sentences imposed. Since greater use seems to have been made of parole and remission in more recent years, the inference may be drawn that the courts are imposing steadily heavier sentences. It is not clear whether such heavier sentences are due to an upsurge in convictions for serious offences, or to a tendency on the part of the Judiciary to impose more severe sentences for the same kinds of offence, or to both. Reliable analysis on this score is frustrated by lack of particularity in the published statistics. One hypothesis which may be advanced as a contributory factor, however, is that just as the courts have tended to increase the level of fines in order to keep pace with monetary inflation, so they have tended to increase the lengths of prison sentences as though the value of these too depreciated over the years.

A breakdown by race and sex of the average daily prison populations for selected years from 1911 to 1968 highlights the extent to which African and coloured prisoners have increasingly contributed towards the total (see Table 18).

The figures in Table 18 establish that the increase from 1911 to 1968 was greatest for African and coloured women, and next greatest for African and coloured men. The increases for white men and women did not quite keep pace with the increase in total population, whereas the average daily total of Asian men and women prisoners actually decreased. (The totals for the years 1911 and 1913 were inflated by the civil disobedience campaigns led by M. K. Gandhi.) It is noteworthy, however, that in the period 1938 to 1968 increases were recorded for all racial groups. The upward trend in the prison population was considerably less marked in the three decades immediately following Union than it was in the next three decades, and whereas the average daily population of African and coloured prisoners increased by about 65 per cent in the 27 years from 1911 to 1938, it rose by more than 400 per cent in the 30 years from 1938 to 1968. The comparable figures in England and Wales for average daily prison populations (including Borstals and detention centres) were 18,200 in 1913, 11,086 in 1938 and 32,461 in 1968.

vi—
Executions

At the time of Union capital punishment was competent in respect of three crimes, namely, murder, rape and treason. In the case of murder it was an obligatory penalty, but for rape and treason its imposition lay within the discretion of the trial judge.

By 1967 capital punishment had become competent for nine crimes—namely: murder, rape, treason, aggravated housebreaking, armed robbery, kidnapping, and offences under the 'Sabotage' Act, the Suppression of Communism Act, and the Terrorism Act.^[14] The death

[13] Annual Prison Reports. The figures for 1911 have been rounded off to the nearest i. Until the 1960s separate figures were not kept for African and coloured prisoners. The figures for 1968 are for the year ended 30th June 1968.

[14] Criminal Procedure Amendment Act, 1958, sec. 4 (robbery and housebreaking); General Law Amendment Act, 1962, sec. 21 (sabotage); General Law Amendment Act, 1963, adding a new offence and punishment to the Suppression of Communism Act, 1950; Criminal Procedure Amendment Act, 1965 (kidnapping and child stealing); The Terrorism Act, 1967.

sentence continued to be compulsory for murder, save that since 1935, if extenuating circumstances were found to be proved, the judge could impose a lesser penalty. As far as the other eight offences were concerned, capital punishment could be imposed at the discretion of the Judge.

The addition of the six new capital crimes took place in the decade 1958 to 1968, which was also a time of considerable increase in the number of persons executed in South Africa (see Table 19).

From the figures in Table 19 it can be seen that in the first decade after Union the average annual number of executions was 29, in the fourth decade it was 19 and in the sixth decade it was 95. Thus an

[15] Figures extracted from annual reports of the Commissioner of Prisons, which referred to calendar years until 1956, when they referred to the 12-month period ending 30th June of the year mentioned. In the past decade about 90 per cent of executions were for murder: thus in the year ended 30th June 1965, there were 100 executions for murder, 3 for rape, 5 for robbery, 1 for sabotage and 3 for murder and sabotage and 1 for murder and rape. RP 13/1966 p. 5. In the previous year 6 of the executions were for sabotage and 2 for housebreaking.

initial diminution consistent with a trend in many countries towards abolition was followed by a sudden rise inconsistent with such trend. The result has been that after being indistinguishable from dozens of other countries sixty years ago, South Africa now has the distinction of occupying first place in a United Nations survey on the rate of capital punishment throughout the world. Table 20 records the number of death sentences imposed and the number of executions actually carried out during the five-year period 1956–1960 in 32 respondent countries that still retained capital punishment.

A feature of the list is that eleven of the twelve respondent countries with the highest rates of execution were former British colonies, whilst the legal system of the twelfth (the United Arab Republic) had been considerably influenced by British administrators. It should be remembered, however, that a number of countries where capital punishment has not been abolished did not respond to the survey, and that the figures refer only to judicially imposed executions.

During the following decade a number of countries in the list below either abolished capital punishment altogether, or else suspended its operation (e.g. New Zealand, the United Kingdom, Dahomey, France and the U.S.A.). In many other countries the rate of execution declined, either because fewer death sentences were imposed or because more reprieves were granted. Thus a second United Nations survey revealed that in the next five-year period (1961 to 1965) judicial executions in Nigeria declined from 291 to 191, in the U.S.A. from 219 to 132, in Japan from 126 to 48, in the United Kingdom from 28 to 12, in Canada from 16 to 4, in France from 11 to 6 and in Somalia from 8 to 3; in Taiwan they rose from 15 to 25, and in South Africa, according to the annual Prisons Reports, they rose from 392 to 508.

The total number of executions reported to the United Nations for the period 1961 to 1965 was 1,033. During the five-year period ended 30th June 1966 a total of 508 persons were executed in South Africa, representing nearly half the world's reported total for approximately the same period.

The discovery that the hangman in Pretoria was responsible for almost half of all the world's reported judicial executions, prompted discussion on capital punishment in South African legal journals and the press. Nearly all the academic writing was abolitionist in character, and many advocates as well as a few judges declared themselves against capital punishment. Yet when in 1969 a Member of Parliament introduced a motion to request the Government to consider the advisability

of appointing a commission to enquire into the desirability of abolition, she was unable to find a seconder, and the motion lapsed.

The main argument in favour of retention has been essentially a racial one. Thus the 1947 Penal Reform Commission commented that comparisons with abolitionist countries were unhelpful, since they did not have heterogeneous populations in which the bulk of 80 per cent of the population had not yet emerged from barbarism. In 1968 the head of the Department of Criminology at Pretoria University stated in a popular weekly newpaper that the abolition of the death sentence might be regarded by the non-whites as a sign of weakness and as a licence to sow death and destruction (Venter, Landstem 1/9/1968).

vii—
Corporal Punishment

The incidence of corporal punishment in South Africa dropped consistently for a number of decades and then rose sharply again before recently declining once more. In the first four decades after Union a total of approximately 115,000 offenders received approximately 910,000 strokes, while in the following two decades approximately 220,000 offenders received approximately 1,220,000 strokes.^[16] Thus the number of persons per decade receiving corporal punishment increased nearly fourfold, outstripping the increase in population, while the number of strokes inflicted per decade more than doubled. Table 21

[16] Rough calculations by the writer based on figures in the Annual reports of the director (now Comminisrioner) of Prisons.

indicates the number of offenders sentenced to corporal punishment and the number of strokes inflicted during selected years from 1911 to 1969.

Starting in 1911 with approximately 3,400 offenders receiving 34,000 strokes, the figures tended to drop until they reached their nadir in 1941, when 1,600 offenders received 10,000 strokes. Thereafter the figures crept up consistently until 1952, when Parliament laid down that corporal punishment should be a mandatory sentence for persons found guilty of certain specified offences. This led to a very rapid rise in the figures which reached a peak of 18,500 offenders sentenced to 94,000 strokes in 1958. The figures then stayed on a plateau before descending once more when judicial discretion was restored in 1965. By 1969 slightly more than 5,000 offenders received slightly less than 26,000 strokes.

The South African Penal Reform Commission reported in 1947 that corporal punishment as a method of dealing with crime had been abandoned by most of the civilised countries of the world, outstanding exceptions being the British Commonwealth and dependencies and parts of the United States of America. It added that the main argument for its retention in South Africa was that it was a deterrent "of special efficacy especially in a country largely populated by a people the bulk of whom have not yet emerged from an uncivilised state, and that no other penalty would be equally effective in respect of crimes of violence or those crimes which by reason of their diabolical or inhuman character gravely shock the sense of a law-abiding community". After considering the arguments for abolition, the Commission declared that while not losing sight of the ideal that a civilised community should rid itself of the obloquy of exercising a brutal means of penalty, a sensible realism should be adhered to, and corporal punishment should be retained in South Africa. It recommended that flogging be imposed only for sexual assaults, or assaults involving grievous bodily harm, aggravated cruelty to humans or animals, stock-theft or housebreaking. With regard to stock-theft, it said that the withdrawal of corporal punishment as a penalty might be gravely detrimental to the interests of stock-farmers, who were entitled to special protection. Similarly, housebreaking was on the increase and might call for special deterrent.

The notion of corporal punishment being a special deterrent was developed in Parliament in the 1950s when the law relating to criminal procedure was amended to make whipping an obligatory sentence for

specified crimes.^[17] Previously corporal punishment had been a competent penalty, either on its own or in addition to any other penalty, for most common law offences. Now the discretion of the courts was removed, and judges and magistrates were ordered to impose strokes on all persons found guilty of housebreaking, receiving stolen property, theft of motor cars or theft from motor cars, and the more serious crimes of violence. Defending the subsequent large-scale Hogging of youths, the Secretary of Justice said in an interview: "I frequently walked around with what we regarded as honourable scars after I had had a difference of opinion with authority, and I do not think I am any the worse for it. . . . Boys being what they are there will always be some who scream and some who will not. . . . Such hidings naturally left small wounds but the same happened to boys who were caned at school" (Jansen, Cape Argus , 25/6/1955).

The general increase in whippings was considerable, but there appeared to be little corresponding decrease in the specified offences. Eventually, after twelve years had elapsed and a million strokes had been imposed, the failure of mandatory flogging was officially acknowledged, and the discretion of the courts was restored (Act 96 of 1965).

While there have been sharp fluctuations in the number of persons subjected to whipping since 1911, the trend towards reducing the average number of strokes inflicted on each offender has been fairly consistent. This drop was noted with dismay by one Director of Prisons, who reported in 1935 that the effect of corporal punishment had been closely watched for some time, and the definite conclusion had been arrived at that the infliction of a lesser number of strokes than six in the case of whites and eight in the case of blacks was not an effective punishment. The Penal Reform Commission, on the other hand, observed that after the eighth stroke the cane fell upon numbed flesh and was ineffective. In practice the average number of strokes inflicted on each offender fell from 10 in 1911 to 5 in 1958, and it has remained at slightly under 5 since then.

At the same time as the average number of strokes per offender was being reduced, provincial variations were also being eliminated. Table 22 sets out the changes in the incidence of corporal punishment according to province for the year ended 30th June 1958 compared with the year 1918.

[17] Act 33 of 1952 and Act 25 of 1955 brought about the changes which were consolidated in the Criminal Procedure Act 56 of 1955, Third Schedule, Part II.

Table 22 shows that Natal has lost its pre-eminence as the 'lashing colony', and that the incidence of whipping now corresponds roughly with the total population of each province. The Transvaal has moved from being third in terms of total whippings and last in terms of average number of strokes, to first in each category.

The word 'whipping' has been used here interchangeably with 'floggings' and 'corporal punishment', in the same way in which it has been used in South African legislation. The term covers both lashes with]

a cat-o'-nine-tails and strokes with a heavy or light cane. The use of the cat has in fact become increasingly rare, and the prisons reports appear to have made no mention of its administration since 1958, when four persons were whipped with the cat. A heavy cane is used for offenders over 21 years old and a light cane for those under 21.

Now that the courts have had their discretion restored as to whether or not to impose corporal punishment, the incidence of flogging has dropped considerably. It is still higher than it was thirty years ago, but proportionate to the total population it is lower than it was at the time of Union. Men who are over the age of 50 or else who are medically unfit may not be whipped, and it is never a competent punishment for women offenders. The flogging of white men and youths is relatively

infrequent but nevertheless not rare, as is shown in Table 23, which sets out the race and age of persons subjected to corporal punishment in the year ended 30th June 1969.

A comparison of the figures in Table 23 with those in the annual report for the year ended mid-1958 reveals that all racial groups have benefited from the recent reduction in thrashings, but that white offenders have benefited the most. The judges have also tended to exercise their discretion more benevolently than the magistrates, while even in the prisons, where corporal punishment for disciplinary offences was never made compulsory, its incidence has declined.