Legal History

By early 20th-century South Africa, discourses around the definition and designation of infanticide as a criminal act developed with three main foci: medical, moral, and legal. State and official concerns about this crime were part of a larger preoccupation with moral reform specifically related to sexual morality, legitimacy, good parenting, and racial purity. Within the medical and legal fraternities, debates at the time were fixated on nebulous understandings of illicit sex and illegitimacy. The narratives of these criminal cases pry open the social dynamics of private and intimate spaces where love, lust, incest, ignorance, poverty, seduction, and rape sometimes resulted in undesirable and “illegitimate” pregnancies. In the early years of the Union, state interventions (medical and legal) in this realm were crucial to the constitution of whiteness and the consolidation of racial boundaries. The codes of shame, honor, and good conduct that operated during this time reveal that assumptions about dangerous or bad parenting, bastardy, and miscegenation served as indices from which the state regulated and created malleable categories of respectability, further mythologized the concept of motherhood, and increasingly cast women as social causalities and inescapable victims of their biological make up. However, cases of infanticide as a deliberate act also reveal that for some women and men, this implied a life saved from economic ruin or material and moral poverty. Throughout the late 19th and first half of the 20th centuries, men and women who wished to terminate and conceal unpropitious pregnancies were not only responding to socioeconomic and religious pressures but more so to the lack of effective alternatives: reliable and accessible contraception or recourse to foster care and adoption. The layers of pathos, desperation, prejudices, and pity reflected in incidences of infanticide are not only illustrative of the socioeconomic and political context in which they are located, but this also reveals the deep emotional entanglements of love, affect, and emotional currencies that were constantly under state surveillance.

Definitions of and explanations for mental illness differ between societies and have changed over time. Current use of the term arises from secular and materialist epistemologies of the body and mind, influential from the 18th century, which rejected the spiritual or supernatural as causes of illness. Since the 19th century, a specialist body of study, of law, practices, professionals, and institutions developed to investigate, define, diagnose, and treat disorders and illnesses of the mind. This was the emergence of psychiatry and of a professional psychiatric sector. With origins in the West, at a time of capitalism and imperialism, psychiatry was brought to South Africa through colonialism, and its development has been strongly influenced by the country’s economic, political, ideological, and medico-scientific histories. There have been significant continuities: the sector has always been small, underfunded, and prioritized white men. Black patients were largely neglected. Discrimination and segregation were constant features, but it is helpful to identify three broad phases of the history of the psychiatric sector in South Africa. First, its most formative period was during colonial rule, notably from the mid-1800s to c. 1918, with an institutional base in asylums. The second broad phase lasted from the 1920s to the 1990s. A national network of mental hospitals was created and changes in the ways in which mental illnesses were classified occurred at the beginning of this period. Some new treatments were introduced in the 1930s and 1950s. Law and the profession’s theoretical orientations also changed somewhat in the 1940s, 1960s, and 1970s. Institutional practice remained largely unchanged, however. A third phase began in the 1980s when there were gradual shifts toward democratic governance and the progressive Mental Health Act of 2002, yet continued human rights violations in the case of the state duty of care toward the mentally ill and vulnerable.