study of the Tsonga-speaking people, Henri Junod observes that "… the Bantus possess a strong sense of justice. They believe in social order and in the observance of the laws, and, although these laws were not written, they are universal and perfectly well known".[1] The Cape Law Journal, in a long and admiring report on what it refers to as a Kafir Law Suit, declares that in a typical trial 'the Socratic method of debate appears in all its perfection.'[2] John Henderson Soga points out that offences were considered to be against the community or tribe rather than the individual, and punishment of a constructive or corrective nature was administered for disturbing the balance of tribal life.[3]
[377]More directly for our purposes, the materials suggest that amongst the Cape Nguni, the death penalty was practically confined to cases of suspected witchcraft, and was normally spontaneously carried out after accusation by the diviners.[4] Soga says that the death penalty was never imposed, the reasoning being as follows: 'Why sacrifice a second life for one already lost?'[5] Professor Z.K. Mathews is in broad agreement.[6] The Cape Law Journal notes that summary executions were usually inflicted for assault on the wives of chiefs or aggravated cases of witchcraft, but otherwise the death sentence 'seldom followed even murder, when committed without the aid of supernatural powers; and as banishment, imprisonment and corporal punishment are all unknown in (African) jurisprudence, the property of the people constitutes the great fund out of which debts of justice are paid'.[7]
[378]Similar approaches were apparently followed in other African communities. The Sotho King Moshoeshoe was said to be well known for his opposition to capital punishment, even for supposed witchcraft,[8] as was Montshiwa during his long reign as King of the Barolong.[9] The absence of capital punishment among the Zulu people apparently angered Shepstone, Lieutenant Governor of Natal. Donald
- ↑ Junod, Henri A—The Life of a South African Tribe 2nd Edition published Macmillan 1927 at p. 436.
- ↑ 1889 CLJ 87—Extracts from Maclean's Handbook.
- ↑ John Henderson Soga—The Ama-Xosa: Life and Customs, published Lovedale Press, South Africa; London, Kegan Paul, at p. 46.
- ↑ Hammond-Tooke D: The 'other side' of frontier history: a model of Cape Nguni political process, in African Societies in Southern Africa ed. Leonard Thompson, London 1969, at p. 255.
- ↑ Soga supra at p. 46.
- ↑ Bantu Law and Western Civilisation in South Africa—a study in the clash of cultures (1934 Yale University MA Thesis).
- ↑ 1889 CLJ 89, 1890 CLJ 23 at 34.
- ↑ J M Orpen: History of the Basutus of South Africa, Cape Argus 1857, Reprinted UCT 1955.
- ↑ Molema SM: Montshiwa (1815–1896) Barolong Chief and Patriot (published C. Struik 1966).
