British Empire Article

Courtesy of OSPA

by W. A. Ramsden, Q.C.
Colonial Law and Local Custom;
The effect of customary practices on prostitution
and juvenile delinquency
Swaziland 1969 Stamp
When I was the Attorney-General of Swaziland, I was appointed chairman of a Select Committee of Parliament to investigate and report upon the causes of prostitution and juvenile delinquency in the urban areas. In my report I stated the problem was caused by Swazi men who carried their customary life style with them into the towns. My report was agreed to by every other member of the committee but one, an elderly Senator called Senator Mabuza who gave a dissenting opinion, saying that Christianity was the root cause of the problem.

My report stated that in the country a man was given hut sites by his chief. On these sites he built a hut for himself and a hut for each one of his wives. The chief also gave him plots or gardens, one for each one of his wives to cultivate. The man then "earmarked" cattle for each one of his "houses", that is for each wife. It was his wife's duty to bear him children and together with the children to look after the cattle and till the field she had been allocated. His duty, traditionally, was threefold, namely to take part in wars, to hunt and to take part in tribal councils. Only the latter function remained, so he lived the life of Riley as it were, visiting the wives for food and comfort when he felt so inclined and leaving all the work to them.

In fact the attitude of the Swazi males was clearly displayed when I introduced into Parliament the Reciprocal Enforcement of Maintenance Bill. There was a great outcry from the members in both Houses. "What is this?" they cried. "Why should we pay maintenance? It is not our job to look after the children. That is the wife's job?" The Bill was nevertheless passed, without amendment, but after some persuasion on my part, by saying that this law applied principally to Europeans and was not meant to affect Swazis living under customary law, as indeed it wasn't.

When a Swazi man finds work in the towns, he tends to follow his customary practices. He finds a partner or two, sleeps with them, eats the food she has prepared for him and takes all her savings as his right. He does not pay school fees for the children, buy clothes for his wife or children, or bring gifts. Is it then surprising that the "wife" finds she is better off as a prostitute? Indeed we heard that there were Portuguese men from neighbouring Mozambique and Germans who work in the power station in Ermelo who set up Swazi women in flats, visit them with presents over weekends, who pay school fees for their children and who also pay for their clothing. True they probably earn a good deal more than the Swazi living in town, but they face up to some of the responsibilities expected of them. Children who are not sent to school or cared for, feel neglected and abandoned. They roam the streets and get up to a good deal of mischief.

So why did Senator Mabuza file a dissenting report? He said that on one occasion when he had beaten his daughter she went to school later that day. The nuns noticed the marks on her body and reported the matter to the police who came to the village and led him away in handcuffs. From then on he had no discipline over his children. He said that in the olden days before Christianity came to Swaziland things were very different. If your daughter refused to marry the man you had chosen for her, you could tie her up and "smoke" her in the hut by lighting a small fire and closing the doors and windows, until she gave in.

I may add that our reports were put on one side by the Cabinet and as far as I can tell, no action has been taken on it to date, although I think education on husband and wife relationships might do some good, if attempted.

The problem of juvenile delinquency also arose in one of the first cases I took in Basutoland and I think serves to illustrate the problem. I was a very young newly appointed Resident Magistrate in Basutoland. The case was one of housebreaking and theft against several youngsters all under the age of 18 who had broken into the local chemist's shop and stolen cash and various items (including Brooklax - they were found in dire straits somewhere along the road to Teyateyaneng). Convicting is usually very easy, as it was in this case. The main problem arises in sentencing. Each of these youngsters had at least one previous conviction against their names for they had broken into the same chemist's shop on previous occasions. Each time they had been sentenced to six cuts with a light cane, but it had seemed to do them no good. I spoke to brother magistrates and later the same day to the Chief Justice about my problem who all said I had no option but to impose the same sentence again as children under 18 could not be sent to prison. The Chief Justice, a wonderful man called Sir Harold Willan, added: "Then if they do it again after they have turned 18 they can be sentenced to a long term of imprisonment." We had no reformatory or other facility for young offenders in Basutoland so I decided, as it was Friday, to adjourn the matter until the following Monday to consider sentence.

Fortunately on Saturday morning Father Makhetha, the Anglican Archdeacon (subsequently bishop of Basutoland), came to my home and that gave me an idea. I asked him whether the youngsters were known to him and if not, whether he would mind going down to the prison to interview them to try to find out what had made them so lawless. He agreed, and on Monday very reluctantly went into the witness box to tell us what he had learned. It appeared that their fathers were away working on the mines in South Africa, their mothers ran beer halls in outlying areas and they were under the care of grandmothers who could not afford to send them to school and were too tired and old to supervise them properly. While he was talking I had another idea and asked him if he would be able to take charge of these young men if I remanded them into his care. He reluctantly said he would, but that he could not afford to feed them. I tried, but failed, to get money from the District Commissioner for that purpose, but eventually another source of funds was found.

At one time Fr. Makhetha, my makeshift probation officer, had 13 such youngsters in his home all of whom I had placed in his unofficial care and I am proud to say that none of them ever came up before the courts again, certainly while I was serving in the Territory. All they needed was the care and attention of an affectionate home, a good role model and firm discipline. In my view a caning would only have increased their anger with a society which had denied them this elementary entitlement.

Basutoland Map
1955 Map of Swaziland
1955 Map of Basutoland
Colony Profile
1968 Film on Lesotho
Originally Published
OSPA Journal 102: October 2011


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