There are just and compassionate alternative solutions to corporal punishment in prisons

Daily Maverick

3 days ago

Minister for Correctional Services Pieter Groenewald has thrown a hornet's nest at us. Last week he suggested we reintroduce whipping and beating for some offenders, or even alleged offenders, to spare sending them to our overcrowded and often dangerous prisons (corporal punishment).
Minister Groenewald seemed to have in mind inmates convicted or suspected of minor offences who cannot afford low amounts of bail. They may often spend long periods in prison awaiting trial and then serving their sentences.
For the last nearly six years, I've headed the Judicial Inspectorate for Correctional Services (Jics), South Africa's Mandela-era prisons' oversight body. The minister's concerns are real. Our prisons are grossly overcrowded. With bedspace for only 107,000, we jam into them almost 164,000 inmates, – a staggering 53% overcrowding rate. This has devastating consequences for those in detention, for their safety and security, and for running effective rehabilitation programmes.
Remand detainees (those not yet convicted) make up a bigger and bigger chunk of the prison population. Over 59,000 people are awaiting trial inside prison. More than 4,000 have been awaiting trial for longer than two years.
And, more disturbingly even, some 2,500 are in prison simply because they cannot afford bail amounts of less than R1,000.
So the minister is right to jolt us into controversy. His call for alternatives to prison, for both awaiting trial and sentenced inmates, is timely. He cited the example of a man arrested for stealing bread. Often on prisons inspections, I meet inmates imprisoned for petty offences, or for non-violent crimes, like shoplifting, or for possessing small amounts of drugs for personal use.
These inmates are not a danger to society. They do not have to be confined and isolated. Crushing them into our overcrowded and often unsanitary prisons, rather than confronting the factors that drove them to crime in the first place, or effectively rehabilitating them, risks exposing them to drugs, gangs and violence. Many of our remand centres function as training sites to recruit youngsters into gangs – or to turn them into practised criminals.
So we badly need effective alternatives. But is corporal punishment the answer?
The Constitutional Court answered this in 1995. Before it was the startling practice of 'juvenile whipping'. In S v Williams, Justice Pius Langa, a deeply humane man and diffident lawyer, later Chief Justice, led the Court in finding that corporal punishment violates human dignity – and is cruel, inhuman and degrading.
'Corporal punishment involves the intentional infliction of physical pain on a human being by another human being at the instigation of the State… The objective must be to penetrate the levels of tolerance to pain; the result must be a cringing fear, a terror of expectation before the whipping and acute distress which often draws involuntary screams during the infliction. There is no dignity in the act itself; the recipient might struggle against himself to maintain a semblance of dignified suffering or even unconcern; there is no dignity even in the person delivering the punishment.'
He concluded powerfully, ' It is a practice which debases everyone involved in it'. Expert evidence convinced the Court that corporal punishment is not an effective deterrent: 'its effect is likely to be coarsening and degrading rather than rehabilitative.' And even deterrence could not justify so humiliating and painful a punishment.
The Court dismissed the State's argument that corporal punishment is a necessary alternative because of resource and infrastructure constraints. The Court pointed to other creative, more humane, alternatives to imprisonment – like community service, linked to suspended or postponed sentences, and victim-offender mediation.
Counsel for the accused in the Williams case, then-advocate Lee Bozalek, pointed the Court to disturbing class and race implications. Given the huge inequality in our country, most of those likely to experience the State-sanctioned brutality of whipping would be poor black men.
So the question whether corporal punishment can be consistent with the society we aspire for – based on human dignity, equality and freedom – has been conclusively answered. It is not.
But this does not address the minister's legitimate concerns. Don't long periods in overcrowded, unsanitary prison cells also violate inmates' dignity and endanger them? Yes. They do. Of course. So what is the alternative?
Long pre-trial detention is the product of overburdened police, prosecutors, Legal Aid attorneys and courts, all services hollowed out by austerity, inefficiency and corruption. These are systemic problems that corporal punishment will not fix.
Instead, we must invest in energising every element of our criminal justice system, so that crime is swiftly and effectively investigated and tried. There is no quick way, no shortcut, no 'magic bullet' to do this. But we can do it. With energy and leadership and determination. We have the talented people. We need to energise and lead them.
And there are alternatives to unaffordable cash bail. Jics is setting up a bail fund for low-risk inmates granted small bail amounts they cannot afford. At the same time, Jics supports the SA Law Reform Commission's review of the entire bail system, which we hope will lead to much-needed systemic improvements.
And there is more we can do. Some crimes – like sex work, drug use and possession, and many petty offences – should not be crimes at all. For other minor offences, our law already enables non-custodial sentences. These include correctional supervision, community service, fines and restorative justice programmes.
Our overworked courts and prosecutors should embrace these alternatives.
S v Williams warned that when the State administers violence, it fosters violence and indignity. Quoting a US judge, the Court noted that, 'Our Government is the potent, the omni-present teacher. For good or for ill, it teaches the whole people by its example.'
Our country's history warns us away from more violence, more state-sanctioned brutality. What powerful lessons the State could teach us when, rather than violence or incarceration, it prioritises quick, effective, and – yes – compassionate justice. DM