The influence of the native territories penal code on South African criminal law

Abstract

The Native Territories Penal Code (NTPC) was passed by the Parliament of the Cape of Good Hope in 1886. It was part of the administrative machinery of the Cape colonial authorities for the Xhosa speaking people who occupied the area between the Great Kei and the Mtamvuna Rivers. However, it became the criminal code applicable to all people living in the Transkeian Territories regardless of race or colour. The Code was enacted ■following the recommendations of the Cape Government Commission on Native Laws and Customs (1883). Quite unexpectedly this Code exerted a great deal of influence on South African criminal law especially after union was formed in 1910. This was because the code was a document readily available to judges and magistrates in South Africa, and when a difficult question of law arose it was all very easy to say that the South Africa law on the point was as laid down in a particular section of the Code. In this way the Code also assisted in the importation of English law into South African lav;. Text book writers like Gardiner and Lansdown also contributed to the influence of the NTPC on South African criminal law. As time went on, however, South African jurists saw the mistake of the NTPC being recorded as a correct reflection of South African law in particular areas and set out to correct the position. Prominent among these are De Wet & Swanepoel and P.M.A. Hunt. They achieved a great measure of success in watering down the influence of NTPC on South Africa law , although it cannot be said that they eradicated it. So strong was Che influence of this Code that it was felt even as far away as Rhodesia and Bechuanaland (as they then w e r e ).