Study Unit 18

• Contempt of the ruler is a serious crime• Any act of a subject that intentionally rejects, disregards, opposes or disputes the authority of the ruler constitutes a crime• Rejection of the authority of the traditional leader, the national assembly or the representative of the ruler, such as a headman or a messenger, is also regarded as contempt of the rules• The following are examples of acts which were punished in indigenous course as contempt of the ruler :(1) explicitly rejecting the ruler’s authority(2) unlawfully calling and holding a tribal meeting(3) usurping a headmanship(4) conspiring to usurp the ruler’s position(5) encouraging and canvassing subjects to divide the traditional authority and to establish an indepe4ndent traditional authority(6) encouraging subjects to leave the tribal area and to join another ruler(7) rejecting the authority of a headman(8) adultery with the “tribal wife”• Contempt of the ruler requires intent as a form of guilt (culpability)• A stranger cannot commit this crime• In former days, this crime was punished in one of the following ways :(1) banishment, because of the maxim go nyatsa kgosi ke go tloga (“contempt of the ruler means to leave”)(2) the death penalty for serious forms of contempt, together with confiscation of property(3) a fine(4) corporal punishment• the death penalty and corporal punishment have been abolished by the Constitutional Court – so can no longer be imposed• Traditional leaders do not have the authority to banish subjects, and the only valid form of punishment is a fine

• In Northern Sotho “assault” is described as go itia, go betha (“to hit somebody”). And go gobatsa (“to hurt somebody”)• In Tswana the terms for “assault” can be translated with the word “attack”• I therefore appears that according to indigenous law “assault” has to do with unlawfully and intentionally hurting another person’s body• Assault is particularly associated with blood and with bodily injury• An attach causing an open wound or permanent bodily injury is regarded as assault• It is believed that human blood belongs to the ruler• To injure someone until the blood flows also has a public, defiling effect on the community• This defilement is then compensated for by means of a reconciliatory meal at which both the assailant and the victim, and members of the court council are present• The assailant must provide the animal that is slaughtered as a sacrifice meal• An attach where there is no blood or bodily injury, regardless of the seriousness of the attack, is not considered an assault• Intention and unlawfulness are requirements for assault• Bodily injury caused by negligence does not constitute assault• A person will be liable if he did not provide the necessary warning, and is therefore considered negligent• Defence, executing an official order or discipline, participation in recognised “kierie” or stick fights or initiation ceremonies are considered grounds of justification• In cases of assault there must be a complainant• The victim and the assailant must also settle the matter between themselves before proceedings are instituted at an indigenous court• If there is a settlement in such a case, it therefore means that there is no punishment under indigenous law• This does not mean that the less serious assault does not constitute a crime, but the interests of the community are satisfied because relations between those concerned are restored• The harmony can be regarded as public satisfaction• Punishment in cases of assault is decided on by the court and was generally in the form of a fine or corporal punishment, or a combination of the two• Provocation by the victim is considered a mitigating circumstance• Serious injury and the use of a dangerous weapon are aggravating circumstances• The court often gives part of the judgment goods to a complainant “to heal the would” – as satisfaction• The court also sometimes ordered a form of retaliation (i.e. revenge) which meant that the injured person could injure the assailant in a similar way• Today the assailant is ordered by the indigenous court to pay the victim the medical costs that were caused directly by the assault = an element of compensation in cases of assault

• According to indigenous law, rape occurs when a man uses violence to force a woman to have sex without being married• Sex with a girl who is not sexually mature is punishable as rape, even if no violence is committed• The use of violence is a requirement for rape• The woman therefore has to offer resistance unless she is threatened• The terms used for “rape” emphasise the element of violence• The Northern Sotho refer to rape as kato - “to hold tight”• The Tswana use petelelo “to constrain” or “to overpower”• If under the law of the Northern Sotho, it is proven that the woman was thrown on the ground, or that she was constrained and that her clothes were torn, while she was screaming, or was offering resistance, these are sufficient grounds for the attacker to be found guilty of rape• The woman must have reported the matter to the head of her family immediately• Some groups require penetration for rape to have taken place - no penetration can be regarded as assault• Rape is a serious crime and is regarded as unlawful and intentional harm to the woman’s body and honour• At the same time it also harms the honour of the agnatic group• In former times, rape could be punished with the death penalty, particularly if the victim was the wife of the traditional ruler• Other recognised forms of punishment were fines or corporal punishment, or both• A person who caught a rapist in the act with his wife, daughter or sister, could give him a severe thrashing without being punished• There are also cases where the rapist was killed and the killer was not punished• The killing and the assault were regarded as lawful means of self-help that excluded the unlawfulness of killing and assault• The killing and the assault at the same time also serve as lawful means of protecting guardianship• The killing and thrashing must therefore also be seen as forms of satisfaction• Today, rape may not be tried by an indigenous court as a crime, but only as a delict