During the 17th and 18th centuries Cape criminal procedures were tried before the Court of Justice which sat at Cape Town. This Court, the highest in the Colony, was composed of eleven members in 1686, and a hundred years later of twelve. In 1797 the number was reduced to seven, when the members received salaries for the first time. The President received £400 per annum. Up to 1734 the Governor occupied this position, but after this the Vice-Governor did so. The members acted as judge and jury combined. It was only during the Batavian period (1803-1806) that the members were first appointed with some reference to their legal qualification; in fact the first members then appointed all held the degree of Doctor of Laws. Two or more generally sat as commissioned members ( Heeren Gecommitteerden ) to try petty cases and hear disputes. In the latter cases they endeavoured as far as possible to settle them amicably, and thus prevent them going before the full Court. Besides their judicial functions two of their number attended in rotation at the registration of all deeds of transfers of landed property, mortgages and other like acts. A record of all the proceedings of the Court of Justice was kept by the Secretary or Registrar.
One of the important functionaries of the Court was the Fiscal, who was the Public Prosecutor. He held high rank amongst the government officials, taking precedence after the Vice-Governor, and had a seat in the Council of Policy. Yet he was free from any control of the Governor and was called “Independent”. He was appointed by the Directors of the Dutch East India Company in Holland, and to them he was directly responsible. He watched with vigilance the interests of the Company and was ever on the alert to bring to justice any official guilty of neglect, a breach of those regulations by which it was hoped that the monopolizing and restrictive system of its Eastern trade might be upheld.
He maintained and protected before the Court of Justice the power of the Government and defended its property, means, revenue, rights and privileges against all fraud, contravention by whomsoever attempted. The Fiscal had free access to all and every register, book, letter and paper of the Government. He could report the Governor to the Seventeen for any misrule or neglect of duty, and could institute an action against any other officials before the Court. In civil and criminal cases he was instructed to guide himself according to the Ordinances of King Philip, passed in the years 1580 and 1570 respectively. In 1793 it was found necessary to make the Independent Fiscal subordinate to the Government, and his title was accordingly changed to that of Fiscal. He, however, retained his powers and duties notwithstanding this change. Both by his early instructions and those given by Commissary-General de Mist, when he received the title of Procureur-Generaal (Attorney-General), he exercised the functions of Public Prosecutor.
To bring a criminal to trial before the Court he was either arrested or summoned to appear personally. Unless a person was found in flagrante delicto or detected while running away, he could not be arrested without an order previously obtained from the Court to whose jurisdiction he was subject. In the case of crime not of a serious nature, the perpetrator was summoned to appear on a fixed day before the Court. But a criminal caught in the commission of a crime was arrested at once, and the Prosecutor obliged to apply within twenty-four hours to the Court for confirmation of the arrest. If he had taken to flight he was summoned “by means of placards and the ringing of a bell” to appear and answer to the charge upon pain of perpetual banishment. The fugitive was summoned on four occasions, a week or more being allowed to elapse between each citation.
Each summons was read out from the balcony of the Court House ( bij edicte en openlijken klockingeslag doen dagvaarden ), and copies thereof posted up (placarded) at different parts of the town and in the country where the people congregated as a rule. All government proclamations, notices and advertisements were promulgated in a like manner and often read from the pulpit after divine service or as the congregation dispersed. Copies were also affixed to the church door. By Ordinance 21 of 1826 this method, as regards government laws, was abolished. It provided that the transmission of the Ordinance to the Court of Justice, together with the printing thereof in the “Government Gazette” constituted promulgation. The ringing of the bell and reading out the citation in legal cases ceased to be practised the following year. When the Fiscal was notified of the commission of a crime, he began instituting enquiries and gathering evidence. The depositions of the witnesses were taken before two commissioned members of the Court ( Heeren Gecommitteerden ) and sworn to before them, after having been carefully read over to the deponents. The Prosecutor laid his complaint before the Court and brought his witnesses. The Court then decided whether an order of arrest was to be given or not.
Before the death sentence could be passed, it was necessary that the accused should confess his crime. In order, therefore, to obtain this confession in a case where the proofs of his guilt were sufficient, but he would not acknowledge it, he was subjected to torture. With regard to what was sufficient proof necessary to put a suspected person to the torture, Van Leeuwen says: “But only upon such proofs as would almost alone amount to sufficient certainty, only that in such event nothing else is wanting but the confession of the accused, in order to convict him with sufficient certainty of the offence out of his own mouth.” The early Cape records show that not only the rack,b0 but also the thumbscrew was used for this purpose. The degree of torture seems to have varied. We read of the prisoner being brought into the torture room ad actum proximum.
The accused was hoisted up by a rope tied to his hands and suspended by a pulley from the ceiling. Weights were attached to his great toes. These weights varied according to the degree of torture. “Full torture” consisted of 50 lb. weights being suspended from each of the great toes. The use of torture against persons suspected of crimes was abolished at the Cape in 1797. It is interesting to record what Sir John Barrow says about this in his book of travels: “Contrary, however, to the opinion of the Court of Justice, there were fewer executions after the abolition of the rack and torture than had taken place in an equal period for many years before, so much, that one of the public executioners made an application for a pension in lieu of the emoluments he used to receive for the breaking of legs and arms. The fate of the other hangman was singular enough. On hearing that the abolition of the rack and torture was likely to take place he waited upon the Chief Magistrate to know from him whether it was the fashion amongst the English to break on the wheel. A few days after he was found hanging in his room. It was thought that the fear of starving, for want of employment, on account of his having held such an office, had operated powerfully on his mind as to have led him to the perpetration of self-murder.” The use of torture was abolished in Holland in 1798.
There were two ways of prosecuting a criminal, one called the Ordinary and the other Extraordinary Process, and both were founded upon the 7th, 32nd and 35th articles of the 1570 Ordinance. The one was where the accused denied the crime or the evidence was doubtful, and the other was where the guilt had been confessed or was proved by the evidence. In ordinary process he was allowed to defend himself by counsel, as in an ordinary suit, and could lodge an appeal against the sentence. In the other case, however, no appeal lay against the judgment. With regard to a criminal being allowed to have counsel to defend him, he could not of right demand it, but only if the judges thought it necessary. The prisoner was brought before the judges within twenty-four hours of arrest and examined. This examination was based upon the evidence adduced from the preliminary depositions taken in the early stages. In the country districts the Landdrost took up the duties of the Public Prosecutor. A preliminary examination was held before two commissioned Heemraden, and when the case was ready the prisoner was sent down to Cape Town for trial. Here the Landdrost would conduct the prosecution subject to the Fiscal not wishing to do so. Sometimes it happened that the evidence was insufficient, and there was little likelihood of further proof being obtained then or in the future. In such a case the prisoner applied to be released, under handtasting, i.e., he took the President of the Court by the hand and promised to appear again when called upon subpoene confessi et convicti. In 1811 this was still practised here. After the claim and demand ( eisch en conclusie ) of the Fiscal had been heard (this statement was written out before the trial) the verdict of the judges was given. This was taken by ballot, which in the case of murder had to be given by a majority of votes. “These opinions, and the grounds of them, are not declared in public, nor is there a summing up, as is done by the judges in England.
The deliberations are foribus clausis, and the judgment read by the Secretary to the parties in Court, re-opened for that purpose.” No sentence was carried out until it received the Governor’s fiat , and when confirmed had to be executed without delay. A person sentenced to death was attended by a clergyman until his execution. On this day he was sent under a military escort to the place of execution, which in former days stood upon the site occupied at present by the Magistrates’ Office in Buitenkant Street, Cape Town. Two commissioned members of the Court, the Secretary and the Fiscal were all present and remained until the end. A report was sent in to the Court that the sentence had been carried out. The instruments of death and torture were the gibbet, flogging and strangling posts, the cross upon which the limbs were broken, and the branding irons. For castigations, ropes’ ends, split rattans, twigs of quince trees, leather traces, and the sjambok were used. A person condemned to be scourged was tied to a post and his hands fastened above his head, and the lashes applied upon the back and shoulders. The executioner inflicted the first stripe, his assistant the next few and the remainder were given by convicts.
The crimes punishable at the Cape were such as are mentioned in any of the books of the Dutch jurists on criminal law. They were crimes against the State and public safety, crimes against the life, person or reputation of another, crimes against property and those arising from incontinence. Taking the sentences of the Court of Justice passed between the years 1814 and 1825 the following crimes are found: murder, infanticide, homicide, rape, incest, unnatural crime, seduction, treason and rebellion, arson, perjury, forgery, uttering forged money, embezzlement, fraud and theft, assault and robbery, assault and violence, vagabondizing and desertion, burglary and theft, stock theft, receiving stolen goods, libel, etc.
Adultery was also punished. The following few cases, taken from the criminal records of the Court of Justice, are set forth so that the reader might see that the general practice here was similar to that in Holland. Grotius says that those who committed deliberate suicide were punished by their bodies being dragged upon a hurdle and exposed on a gibbet and their property confiscated. In 1671 the Court passed sentence on the body of a female Hottentot who had strangled herself. The body was drawn out of the house by an ass and hanged upon a gibbet as carrion for the birds. Her property was confiscated and the proceeds went to defray the cost of the trial and execution. Bigamy was punished by fine and imprisonment.
In 1711 a man found guilty of this was declared dishonourable, infamous and unfit to serve the Company again and was bereft of his office, rank and pay. He was sentenced to be brought to the place of execution and to stand publicly exposed with a paper on his breast on which were to be written in large letters “THE TAKER AND POSSESSOR OF TWO WIVES.” He was to stand for an hour with a distaff under each arm, and was to be sent as a convict to Robben Island for five years and pay a fine of 200 rixdollars (£40) profisco. Women who had been guilty of this crime were also punished. In 1725 a woman was pilloried and afterwards sent back to Holland and fined 100 rixdollars. Four men found guilty of insurrection were ordered to draw lots for life or death. Those who drew lots for life were scourged and sent to labour ad opus publicum (Robben Island). The other two were punished with the halter on the gallows. In 1748 three men were sentenced to draw lots “for life or death”. The one who drew the shortest one was to be shot and those who escaped death to be banished from the Colony. These men had deserted from the Company’s service. For threatening to shoot the Governor, and charged with laesae majestatis, an accused was sentenced to have a bullet fired over his head and banished for three years to the public works. A crime which occurred with some frequency was the forgery of the paper money in circulation at the Cape from 1782.
A man and woman who had forged and uttered the Cape paper money were banished for life out of the Colony. For forcing his way into the church as the congregation was dispersing and creating disturbance, a slave was ordered to be scourged. For receiving stolen goods a sentence of scourging, fifteen years in chains on Robben Island, and perpetual banishment from the Colony was passed. A libel ( pasquil ) on the good name of the citizens and government officials had been placarded over the town, the author whereof was not known. Upon the Fiscal bringing this to the notice of the Court the latter declared the composer and publisher to be infamous and disgraced, and if discovered ignominiously punished. It further ordered that the libel be burnt in the presence of a judicial commission by the public hangman at the place of execution. It is interesting to compare a sentence passed for the same offence committed by a European or slave. In 1763 a European was sentenced to be scourged, branded and placed at hard labour on Robben Island for ten years for housebreaking and theft. For the same offence a slave was ordered to be hanged. Fighting or challenging to fight a duel was punished in 1737 by flogging, and one of the parties being put in chains and sent to work at Robben Island for three years. One hundred years after prosecutions for duelling were still carried on, as the case of two military officers before the Supreme Court shows.
The punishments generally inflicted were death, perpetual imprisonment, banishment, whipping, branding and the like. There were also lesser ones, as exposure on the scaffold with a board affixed to the culprit’s neck describing his offence, exposure under the gallows with a halter round the head, firing a shot over the head, waving a sword over the head while the prisoner knelt blindfolded before a heap of sand. There was imprisonment and fine. The death sentence was carried out in different ways, by hanging, strangling (as practised in the case of women), breaking on the wheel or cross with or without the coup de grace, in not frequent, in cases of arson, decapitation, quartering and chopping off the limbs. Banishment was for life or a number of years, from one particular district of the Colony or from the whole country. Confiscation of a criminal’s property which was in vogue here, was abolished by a Placaat of the States-General on the 10th August, 1778. This was duly published at the Cape according to law on the 24th April, 1779.
The punishment of crimes was defined by the 1570 Ordinance. The Judges were ordered in criminal cases to decide according to the Netherlandic law, and where that was silent or deficient to refer to the Roman law. Sometimes the punishment was not specifically laid down and the punishment assigned by the Roman law was sometimes such as could not be applied. In such a case the punishment was left ad arbitrium judicis. A letter written by the members of the Court of Justice to the Head of the Cape Government in 1796 will show what rules guided the Judges in determining the punishments imposed.
“ … The degree of severity with which punishments are inflicted according to our laws is measured by the atrocity of the crime, which in proportion to its magnitude demands a more striking example : But in all cases the following particulars are carefully considered : – (1) The person who commits the crime, and also the person upon whom it is committed; as when a subject murders his sovereign or a slave his master. (2) The place in which the crime is committed, for example, he who murders a person in his own house, which ever ought to be his safest asylum, is punished more severely than he who commits murder in a place to which both had an equal right. (3) The quality of the fact; as whether the instrument with which the murder is committed is generally esteemed a deadly weapon or not. (4) The quantity of guilt, as, when the accused has murdered more than one person, or has been guilty of the same crime at any former time. (5) The design in committing the crimes, as when it is followed by thefts. (6) The Judge also pays attention to the motives from which the crime was committed, for instance, whether murder has been perpetrated in anger or premeditated, in cold blood, and in an invidious manner.
Particular attention was paid to these and other circumstances, which might produce some shades of difference even in crimes essentially of the same nature, whether committed by free people or slaves, and incurred different degrees of punishment according to their atrocity. In our jurisprudence it is usual to punish with greater severity housebreaking and theft, accompanied with murder, than theft alone, whether it is committed by free people or slaves. A wilful and insidious murder is more severely punished, than murder perpetrated in the heat of passion, where provocation has been given – simple murder is deemed less culpable than regicide – parricide, fratricide, etc. – an incendiary is punished by fire, etc. These distinctions obtain so universally that they almost amount to a rule of conduct for the Courts Juridicature over all Europe; and in this country they are observed equally with free persons and slaves …”
Source: Cape Law Medicine & Place names by Graham Botha (Collected Works)
