1 Union Government, Department of Justice, Annual Report 112 (Pretoria: U.G. 22–1910).Google Scholar

2 J. Culler, Framing the Sign ix (Oxford: Basil Blackwell, 1988).Google Scholar

3 Id.Google Scholar

4 M. Foucault, Power/Knowledge 106–7 (New York: Pantheon, 1980).Google Scholar

5 P. Fitzpatrick, “‘The Desperate Vacuum’: Imperialism and Law in the Experience of Enlightenment,” 13 Droit et Societé 354 (1989).CrossRefGoogle Scholar

6 Foucault's phrase “the great incarceration” strikes a chord. In the early years of the state there was a huge leap in the numbers sentenced and imprisoned. Very nearly all were black men, prosecuted under the taxation, pass, and masters and servants laws. In these years the process was centered on the Transvaal. For an analysis of the figures see A. Sachs, Justice in South Africa 162–70 (London: Chatto, 1973). See too C. van Onselen, “Crime and Total Institutions in the Making of Modem South Africa: The Life of ‘Nongololoza’ Mathebula,” 19 Hist. Workshop 1985 at 68, for his discussion of the “dramatic tightening of the bands of a labour repressive system” and the consequent “explosive increase in the size of the Transvaal prison population.” Between 1912 and 1932 the number of persons of all races prosecuted increased from 46 per thousand to 72.3. The numbers convicted rose from 37.8 per thousand to 63.1. H. J. Simons, “The Criminal Law and Its Administration in South Africa, Southern Rhodesia and Kenya” 29 (Ph.D. thesis, London University, 1936) (“Simons, ‘Criminal Law’”). Far more acts were criminalized and policing was intensified.Google Scholar

7 In relation to context and meaning a further point must be made. Read now, many of the thoughts discussed here appear both extreme and bizarre. But they were then not an isolated corner of racist thought at odds with liberal and egalitarian principles immanent in Western thought. They were expressed from within the common Sense of the Western scientific and legal worlds, and the words had quite ordinary connotations, different from those which they have today.Google Scholar

8 I use the term “ethnography” in the broadest sense of social description of other groups, and do not limit it to the academic productions of professional ethnographers. “Criminology” is likewise used to encompass all writing about crime and criminals, not simply that of a limited professional group.Google Scholar

9 E.g., J. A. Boon, Other Tribes, Other Scribes. Symbolic Anthropology in the Comparative Study of Cultures, Histories, Religions, and Texts (Cambridge: Cambridge University Press, 1982), and J. Clifford & G. Marcus, Writing Culture. The Poetics and Politics of Ethnography (Berkeley: University of California Press, 1986).Google Scholar

10 Cf. the remarks of D. van Zyl Smit, “Adopting and Adapting Criminological Ideas: Criminology and Afrikaner Nationalism in South Africa,” 13 Contemp. Crises 227 (1989). Criminological ideas “are incorporated into national criminologies and applied in specific penal practices.” The ideas, he goes on, are “transformed” in the process of incorporation into these discourses. But the national discourses, particularly in colonial countries, are constantly transformed, in that they are restructured by the ideas prevailing outside.Google Scholar

11 D. Garland, Punishment and Welfare: A History of Penal Strategies 110 (London: Heinemann, 1985) (“Garland, Punishment and Welfare”). Google Scholar

12 Id. at 112, 111, & 114.Google Scholar

13 Id. at 185; italics in original.Google Scholar

14 Van Zyl Smit writes of Afrikaner criminology of the 1940s that while it employed a social emphasis on issues like poverty to explain white crime, it abandoned this focus when it turned to black crime, concentrating there on “organic differences.” This had long been a feature of South African criminology. Van Zyl Smit, 13 Contemp. Crises 227.CrossRefGoogle Scholar

15 Garland, Punishment and Welfare 38–41.Google Scholar

16 There were frequent demands from magistrates for control of syphilis. The compulsory medical examination of all blacks living in urban areas was suggested. Union Government, Department of Justice, Annual Report 78 (Pretoria: U.G. 39–1916). In 1913 one Cape magistrate reported having convicted a man who had syphilis for not submitting to the prescribed treatment. Printed with the heading “Danger in the Household,” the report recounts how the accused had engaged himself as a kitchen boy, “there being no outward sign of the disease.” Union Government, Department of Justice, Annual Report 100 (Pretoria: U.G. 44-1913). There were many other accounts of infected servants.Google Scholar

The Public Health Act passed in 1919 provided, amongst other matters, for the prevention and suppression of venereal diseases. The onus was placed on those who suffered from them to place themselves under medical treatment. It also provided for compulsory detention and treatment of the infected. This legislation appeared to respond to fears about a pollutant leak from the black to the white world.Google Scholar

17 G. C. B. Bain, Crime, the American Negro, and the Urban Native in South Africa 37–38 (Pretoria: Carnegie Corporation, 1938) (“Bain, Crime”). Even H. J. Simons, the writer in this field most sympathetic to Africans, employed a primal innocence/urban corruption opposition. Men and women, he wrote, “who themselves, or whose recent ancestors, had been orderly and law abiding in the tribe became hooligans, criminals and prostitutes in the centres of white civilisation.”“Criminal Law” at 1 (cited in note 6). The seeds of criminality lay in this formulation not in the primitive savagery but in the new oppressions: unemployment and the extremes of poverty and wealth. This was not a common South African analysis.Google Scholar

18 Quoted in Simons, “Criminal Law,” at 2.Google Scholar

19 Cf. again van Zyl Smit on the 1940s: crime control policies “based on the science of criminology” demanded the “strict separation of the races.” 13 Contemp. Crises 240.Google Scholar

20 Transvaal Government, Report of the Indigency Commission ch. 3 (Pretoria: T.G. 11-1908) (“Transvaal Government, Idigency Commission”). Google Scholar

21 Id. at 139 & 140.Google Scholar

22 Cd. 2852 (1906).Google Scholar

23 Transvaal Government, Indigency Commission 140, 143.Google Scholar

24 Garland, Punishment and Welfare 130 (cited in note 10).Google Scholar

25 H. M. Boies, quoted in id. at 132.Google Scholar

26 There was a major rebellion in Zululand in 1906; strikes of white workers involving widespread disorder and the use of troops in 1907, 1911, 1913/14, and 1922; and an Afrikaner armed rebellion in 1915.Google Scholar

27 “The Reef” refers to the geographical (and extended urban) area in the Transvaal (about 60 miles long) where the original goldmines were situated.Google Scholar

28 My emphasis. Commissioner of Police, Annual Rep 45 (Pretoria: U.G. 62-1912).Google Scholar

29 Id. at 70.Google Scholar

30 Union Government, Report of the Commission Appointed to Enquire into Assaults on Women 13 (Pretoria: U.G. 39-1913) (“Union Government Commission, Assaults on Women”). Google Scholar

31 Report of the Native Economic Commission 1930-32 at #776 (Pretoria: U.G. 22-1932) (“Union Government, Native Economic Commission”). Google Scholar

32 Id. at #39. Bryant's book was published in 1929 (London: Longmans).Google Scholar

33 Bain, Crime 43, 50 (cited in note 17).Google Scholar

34 B. J. F. Laubscher, Sex, Custom and Psychopathology: A Study of South African Pagan Natives 59 (London: Routledge & Kegan Paul, 1937) (“Laubscher, Sex, Custom and Psychopathology”). Google Scholar

35 Id. at 316. Simons quotes the Afrikaner criminologist Willemse who averred that African criminals existed because the African was an “undifferentiated person, a child, a natural man who feels and acts more than he feels and thinks.” Simons, “Criminal Law” 50 (cited in note 6).Google Scholar

36 Bain, Crime 51.Google Scholar

37 Id. at 52.Google Scholar

38 M. Chanock “The South African Native Administration Act of 1927: Reflections on a Pathological Case of Legal Pluralism,” in U. Baxi & O. Mendelsohn, eds., Law and Subordinated Peoples (New Delhi: Oxford University Press, 1994) (“Chanock, ‘Native Administration Act’”).Google Scholar

39 Bain, Crime 52. For further development of this theme see also Chanock, “Native Administration Act.”Google Scholar

40 P. La Hausse, “‘The Cows of Nongoloza’: Youth, Crime and Amalaita Gangs in Durban, 1900-1936,” 16 J. S. Afr. Stud. 85, 92 (1990).Google Scholar

41 La Hausse (id. at 110) notes that the erosion of male control was “at best temporary.” It is another example of how apprehensions, and the modes of representation, led to exaggerated perceptions and fears.Google Scholar

42 Union Government Commission, Assaults on Women 13 (cited in note 30).Google Scholar

43 One should also note the prior report of the Transvaal Indigency Commission of 1908 (cited in note 20), a source of the view that urban race mixing is itself crimogenic, and which drew particular attention to youthful race mixing and its supposed connection with youth crime.Google Scholar

44 Union Government, Native Economic Commission#507 (cited in note 31).Google Scholar

45 Union Government Commission, Assaults on Women 13.Google Scholar

46 My emphasis. Union Government, Native Economic Commission#779.Google Scholar

47 Commissioner of Police, Annual Report 50, 69 (Pretoria: U.G. 62-1913).Google Scholar

48 Commissioner of Police, Annual Report 59, 64 (Pretoria: U.G. 69-1912).Google Scholar

49 Department of Justice, Annual Report 302 (Pretoria: U.G. 44-1913).Google Scholar

50 C.J.I., “The Cry of the Abolitionist,” 26 S. Afr. L.J. 43, 49, 50, 51 (1909).Google Scholar

51 Garland, Punishment and Welfare ch. 5 (cited in note 10).Google Scholar

52 Id. at 148.Google Scholar

53 “Criminal Law: Treatment of Moral Perverts,” 27 S. Afr. L.J. 508–9 (1910).Google Scholar

54 Union Government Commission, Assaults on Women 32.Google Scholar

55 Similarly the Belgian, German, and Swiss examples of labor colonies, which had been vigorously approved by the Indigency Commission, were not transplanted. The British approach was.Google Scholar

56 N. de V. Hart, “Crime and Criminal Law under Socialism,” 32 S. Afr. L.J. 239, 240, 269 (1915-16).Google Scholar

57 C.J.I., 26 S. Afr. L.J. at 51, 52, 53.Google Scholar

58 G. T. Morice, “Recent Mental Science and Its Bearing on the Law,” 28 S. Afr. L.J. 25, 27 (1911).Google Scholar

59 Some ideas from outside were not developed with such enthusiasm. In 1914 the South African Law Journal published an article entitled “Suspended Sentences and the Probation System” by S. B. Kitchin based on a review of H. Salomon, The Contest against Criminality: Investigation and Probation Work in Sweden (Stockholm, 1913). This canvassed the notion, not normally a part of South African debates, that criminality was dependent not on the failings of the individual but on wider social causes. The author noted that South Africa had enacted versions of the corresponding penal laws taken from England. Section 88 of the Prisons and Reformatories Act (No. 13 of 1911) allowed for probation, and there were similar provisions in the Children's Protection Act (No. 35 of 1913), which were applied only to white children. The provisions, wrote Kitchin, “mark a new epoch of advancement” in the contest against criminality in South Africa (at 18). But probation was not popular in South Africa, came under Parliamentary attack, and was little used. Some new criminological ideas fitted in with the felt imperatives of the local situation less well than others and contributed less to the flavor of local thought and law.Google Scholar

60 G. S. Mudall, “Our Prisons and Reformatories,” 30 S. Afr. L.J. 428, 429 (1913).Google Scholar

61 G. T. Morice, “Crime and Feeblemindedness,” 1920 S. Afr. J. Sci. 321, 322.Google Scholar

62 Id. at 323.Google Scholar

63 We might note a closely related concern with a huge and undetected mass of criminally disturbed blacks expressed by Laubscher (Sex, Custom and Psychopathology, cited in note 34). Usually, he wrote, “psychotic and defective” blacks were only detected when they committed crimes and became “a nuisance” to white society. But it was easy for them to live in black rural areas, and “we are forced to the conclusion that the numbers of those mentally disordered living in the kraals must be large…. Such a state of affairs has far reaching influences, especially in reference to crimes against property, stock theft and the formation of habitual criminals, but more important still in reference to crimes of violence and homicide, where the only motive before the court is a grudge against the victim” (id. at 226). In this context see also S. Gilman, Differences and Pathology: Stereotypes of Sexuality, Race and Madness 137 et seq. (Ithaca, N.Y.: Cornell University Press, 1985), for discussions in the United States in the 1840s in the context of abolition of slavery which included “scientific” projections of a huge amount of black insanity and feeblemindedness. These concerns persisted into the 1880s and 1890s.Google Scholar

64 Union Government, Department of Prisons, Annual Report 92, 93, 123 (Pretoria: U.G. 36-1918).Google Scholar

65 Union Government, Department of Prisons, Annual Report (1932), quoted in Simons, Criminal Law 53 (cited in note 6).Google Scholar

66 Cited in id. at 48–49.Google Scholar

67 South Africa, House of Assembly Debates, cols. 2555-60 (9 May 1912).Google Scholar

68 The strictures on the poor whites were absorbed by the visiting Australian journalist, Pratt, who toured South Africa with the Australian Prime Minister Andrew Fisher in 1911. A. Pratt, The Real South Africa 57, 70 (London: Holden & Hardingham, 1913). The curse of the country, he wrote, was the large population of unskilled whites. Johannesburg had, and he quoted the words of the Transvaal Indigency Commission, “a large, idle, semi-criminal population” of unemployable whites (at 57, 70). White youth “seem predestined to indigency, indolence and crime” (at 173). “The criminality of South Africa is unparalleled in the civilised world (at 176). The rates of white criminality in the Transvaal were seven times that of England and four times that of the rest of South Africa. As in other accounts, the criminality was seen as an inherent feature of the defective target group.Google Scholar

69 South Africa, House of Assembly Debates cols. 5570 et seq. (6 June 1925). In 1930 it was reported that most European serious crime was “closely connected with Natives,” some 40% involving liquor sales. Union Government, Native Economic Commission#773 (cited in note 31).Google Scholar

70 These are copiously reported in the contemporary press. For an account of a part of the world of black crime from its own perspective see C. van Onselen, Social and Economic History of the Wtiwatersrand 1896-1914, vol. 2: Social Conditions (New York: Longmans, 1982); id., 19 Hist. Workshop 1985 (cited in note 6).Google Scholar

71 W. Sachs, “The Insane Native: An Introduction to a Psychological Study,” 30 S. Afi. J. Sci. 707, 708–10 (1933).Google Scholar

72 Id. at 710, 711, 712.Google Scholar

73 Id. at 712. To be fair to Dr. Sachs, the purpose of his article was to provide refutation of the view that the minds of whites and blacks were essentially different, by showing that they had the same mental illnesses. “There might be a slight difference in the content of the delusions … in the objects of fear” (at 712-13).Google Scholar

74 I do not intend to argue that this was the product of intention. The young state had a small civil and legal service which dealt with situations on an ad hoc basis, searching haphazardly for precedents as new legislation was asked for by politicians. The judges intended to expound the canons of the common law in an orthodox manner. Nor do I entertain arguments based on function or determinism in so complex, disparate, and contingent a world. I refer, rather, to effect, from which one might infer what was acceptable in the way of legal outcomes. The “rule of law,” far from being color blind, was an instrument of legal segregation. Perhaps the best example of this is the way in which the courts applied the full array of obstructive interpretive legalism to the statutes criminalizing the interracial liquor trade, because large numbers of whites were among those accused.Google Scholar

75 1915 N.A.C. 64, at 77.Google Scholar

76 1908 T.S. 240, at 251.Google Scholar

77 Consider also Moller v. Keimoes School Committee, 1911 A.D. 635, and the discussion of this case by H. Corder, Judges at Work 156–59 (Cape Town: Juta, 1984) (“Corder, Judges at Work”). Immediately after Union, the new Appellate Division gave its seal of approval to the “popular sense,” as they called it, of race divisions and hierarchy, even while noting with regret that popular opinion, as they had defined it, was not unanimous. The Chief Justice noted, in relation to miscegenation: “Unfortunately the practice of many white men has often been inconsistent with that belief” (at 157).Google Scholar

78 There was a continuum of relationships in which revolt was possible. The Magistrate's analysis of the strike and riot in Port Elizabeth in 1920 in which 26 people were shot by the police is suggestive. He wrote not just of economic discontent or only of the problems of controlling a hostile crowd. His account went further. There had been “very considerable unrest and anxiety amongst the European population of the city…. I had received several complaints of open defiance and threats on the part of domestics toward European ladies. Generally the nerves of the Europeans, especially the ladies, were on edge as a result of the truculent attitude generally of the natives.”Report of the Commission Appointed to Enquire into the causes of, and occurrences at, the Native Disturbances at Port Elizabeth on 23/10/10, and the General Economic Conditions as They Affect the Native and Coloured Population 22-23 (Pretoria: U.G. 39-1921) (“Union Government, Commission on Port Elizabeth”). Google Scholar

79 The Star (Johannesburg), 6 Dec. 1921. Magistrates' reports reflect a regular recommendation of the escalation of sanctions for criminal offenses, whipping, longer terms in prison, and harsher prison conditions and diet, in particular those in which Africans were the class of offenders caught. The attitude applied to the most minor areas, as well as major ones, and was accompanied by a repeated diagnosis of the attitude of Africans toward white authority. Without the strictest enforcement of all its laws, the fear was that, to give but one example, Africans would be “under the impression that the Government is afraid of carrying out the laws, and accordingly take up a defiant attitude” (U.G. 36-1919 at 24).Google Scholar

80 C. T. Loram, “The Claims of the Native Question upon Scientists,” 18 S. Afr. J. Sci. 105, 106 (1921-22).Google Scholar

81 R. v. Zulu, 1933 A.D. 197, at 200. Cited in Corder, Judges at Work. Martin Wiener notes the contrast in 19th-century England between the working-class character, seen as filled with “unbridled sensuality and riotous animalism,” and the control required for full enfranchised membership in society. He quotes Gladstone: “self command, self control, respect for order, patience under suffering, confidence in the law, regard for superiors.” He notes that Darwin thought that it “is possible, even probable, that the habit of self command may, like other habits, be inherited.” Leslie Stephen thought that personal self command was an “evolutionarily valuable trait.” M. Wiener, Re-constructing the Criminal: Culture, Law and Policy in England, 1830-1914, at 144, 161 (Cambridge: Cambridge University Press, 1990).Google Scholar

82 1917 N.A.C. 17, at 18.Google Scholar

83 1908 T.S. 71.Google Scholar

84 Id. at 72. Close observation by experienced officials seemed to support this common sense. The Director of Prisons Report for 1934 noted that after the effects “have been closely watched for some time at some of the largest institutions … the definite conclusion has been arrived at that the infliction of a lesser number of strokes than six in the case of Europeans and 8 in the case of natives is not an effective punishment.”Google Scholar

85 1911 N.A.C.107.Google Scholar

86 Id. at 109.Google Scholar

87 R. v. Usikeya, 1912 N.A.C. 98, at 100.Google Scholar

88 R. v. Qoga, 1911 N.A.C. 112, at 121.Google Scholar

89 On this construction of self and other in South African civil law in this period, see M. Chanock, “Race and Nation in South African Common Law,” in P. Fitzpatrick, ed., Nationalism, Racism and Law (Aldershot: Damnouth, 1995).Google Scholar

90 Union Government, Commission on Port Elizabeth 23 (cited in note 78).Google Scholar

91 Union Government, Department of Justice, Annual Report 1926 at 22 (Pretoria: U.G. 17-1926).Google Scholar

92 Laubscher, Sex, Custom and Psychopathology 302, 303 (cited in note 34). Laubscher might appear to be an easy target, but we must remember that he was a mainstream scientist, his degree was from Oxford, he held a senior position in Mental Health Services, and his book was published in England by a leading press in the field.Google Scholar