Correctional services minister Pieter Groenewald has doubled down on his suggestion that corporal punishment could be reintroduced for petty crime, saying it has struck a chord with many South Africans.
“I must say what I see, I see overwhelming support ... It actually surprises me,” he told the Sunday Times on Friday. “For me it is a sign that people are so fed up with crime that they want to see justice.”
But Lukas Muntingh, director of the University of the Western Cape’s Dullah Omar Institute for Constitutional Law, Governance & Human Rights, said bringing back corporal punishment was “constitutionally speaking not even an option”.
Groenewald, an MP with the FF+, sparked intense debate this week when he floated the idea in parliament of reinstating corporal punishment, mainly as a way of reducing the number of prisoners.
Muntingh said the Constitutional Court “made it very clear” in the State v Williams case 30 years ago that corporal punishment violated the constitution. The court ruled that whipping juveniles violated their right to dignity and protection against cruel, inhuman or degrading punishment.
“So even in a bail setting it would not be possible,” Muntingh said. “The other problem with awaiting-trial prisoners is that they haven’t been found guilty of anything. How can we punish someone who has not been tried before the courts?”
Groenewald said he wanted all relevant laws, including the constitution, to be amended to allow the courts to sentence those charged with petty crimes such as shoplifting to caning instead of jail time.
The minister said South Africa had 60,000 awaiting-trial prisoners, who cost taxpayers R463 a day each.
About 2,530 of them faced petty crime charges and could not afford bail even of R1,000. He said some had been in remand custody for as long as 10 years, at great cost to the state, because they were unable to pay bail of as little as R100.
I know people say ‘but it’s inhumane, it’s barbaric’ and all that, but I think it’s more inhumane to have a remanded detainee in prison awaiting trial for three-four months, maybe even a year
He said corporal punishment would not only ease overcrowding but save the state millions of rand.
“We must open the debate,” Groenewald told the Sunday Times.
“I didn’t say I am going to do it, I said let’s open a debate ... I know people say ‘but it’s inhumane, it’s barbaric’ and all that, but I think it’s more inhumane to have a remanded detainee in prison awaiting trial for three-four months, maybe even a year.”
Muntingh said the 2,600 or so awaiting-trial detainees facing relatively minor charges were a drop in the ocean compared with the total prison population of 100,000. “Removing them will hardly make an impact on our problems.”
The slow pace at which the wheels of justice grind is the real issue, he said.
“It is absolutely routine that every case is postponed twice before bail is heard. That is a postponement of a week each time, so it takes every case two weeks before bail is decided. That is 14 days we hold suspects that could have been freed.”
Muntingh said the courts could sit for more hours each day, into the evening even, and should be open on Saturdays.
“We used to see personal freedom as important and urgent. We still see it as important, but we have moved away from urgent.”
Groenewald said corporal punishment could be the solution in open and shut cases of petty crime. “For instance, you now get somebody for shoplifting, normally they call the police, they arrest the person, he or she stole a piece of clothing. The evidence is there,” he said.
“You can have special arrangements with courts in those cases where they can see, ‘Yes, all the evidence is there, it’s a prima facie case, I sentence you to six lashes,’ and that is that.”
He said his “precondition” is that the sentence must be an “order of the court” and the lashes must be inflicted under “strict senior supervision”.
Groenewald said he had yet to formally propose this to the cabinet as he first wanted to see how the general public felt about it. He said the idea was only aimed at the justice system, not misbehaving schoolchildren.
Asked about the association of lashes with slavery and the apartheid era, Groenewald said: “It has nothing to do with slavery. Slavery is you work ... and if you don’t work hard enough then they lash you. I don’t think it’s a rational comparison.
“That’s why I say it must be ordered by the court. It’s not that the police catch someone and give him or her a [beating].”
He said corporal punishment would not be right for women but could be ordered for juveniles “and that sort of thing”.
Another way of cutting the prison population would be to deport foreign inmates instead of incarcerating them.
“We have 25,000 foreign prisoners, costing the taxpayer more than R11m a day and I am also looking at that. That will require some legislative amendments. I want to deport them,” Groenewald said.
“And we have to have memorandums of understanding with [their countries] specifically when it comes to Zimbabwe, Mozambique and Lesotho, because that’s where the majority of our foreign prisoners are from. So I’m busy with that process.”
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