‘A sin against our civilisation’: South Africa’s 1927 Immorality Act and the Criminalisation of Interracial Love, 1920–1948

ABSTRACT

In 1927 South Africa passed the Immorality Act prohibiting miscegenation. The act was distinctly gendered in its composition and implementation, codifying a double standard against women. The Immorality Act not only policed miscegenation but consensual interracial sex and sex work, tacitly acknowledging that love could exist across racial lines. Almost immediately a pattern emerged where different convictions occurred for the same crime. Men and women were charged separately, resulting in disproportionate prosecution of black women. Courts were hesitant to accept black women’s evidence in white men’s trials, leading to biased outcomes. This article explores the gendered implementation of the act from 1920 to 1948 using archival documents and newspaper articles. The voices of women are not accurately represented in the colonial archive, and instances of love and intimacy even less so. The article assesses the impact of the act on the creation of South African legal culture.

KEYWORDS:

• South Africa
• Immorality Act
• history
• gender
• legal culture
• colonial archive
• miscegenation

Introduction

On 23 February 1930, Tylebooi Gwembu left his home in Dassiesfontein, Colesburg, to collect water. At the fountain, he overheard talking in the nearby thicket. He investigated and found his wife, Nogate Gwembu, on the ground and her boss, Johannes Jacobus Smith, lying between her legs. Gwembu grabbed Smith by the neck and pulled him off his wife; and upon noticing Smit’s erect penis, Gwembu punched Smith and then began to beat his wife. The offending couple tried to talk to Gwembu, and Smith offered him 20 sheep, 3 cattle, and £5 for his silence. Smith gave Gwembu the money by the following morning, but by the following Monday, Smith had still not delivered the promised livestock. Gwembu confronted Smith’s wife and told her that he had found her husband engaging in an illicit carnal connection with his wife. Gwembu then went to the police and made a sworn statement on 28 February 1930.¹ Smith and Nogate were arrested and charged. Nogate later pleaded guilty under Section 2 of the Immorality Act, her statement reading, ‘I am guilty. I had connection with a European. I ask for mercy’.² She was sentenced to nine months imprisonment with hard labour.³ Smith was charged under Section 1 of the Immorality Act for having wrongfully and unlawfully had illicit carnal intercourse with a Native⁴ woman, ‘in circumstances which did not amount to rape, attempted rape, [or] indecent assault’.⁵ After pleading innocent, Smith refused to testify further, citing the shame this accusation brought on himself and his family.⁶ Based on the same evidence used to convict Nogate, Smith was found not guilty.⁷

This vignette illustrates some crucial components of the nature of charges under the Immorality Act 3 of 1927, a law which banned ‘illicit carnal connection’ between Natives and Europeans in the Union of South Africa. The existence of legislation such as this elucidates how the Union attempted to control and restrict the sexualities of its citizens in response to fears of the effects of interracial sex on civilisation, based on eugenic theory and debate. Defined as the movement ‘committed to using the principles of heredity and statistics to encourage healthy and discourage unhealthy reproduction’, eugenic theory held that genetically determined characteristics – such as race – corresponded to intelligence and civilisation.⁸ The goal of eugenicists in the late nineteenth and early twentieth centuries was, therefore, to control the breeding of those considered less civilised to maintain racial purity and the future of civilisation.⁹

The act’s promulgation contributed to a legal culture whereby black¹⁰ women were punished more severely for committing miscegenation than white men, who were often acquitted on the same evidence. This article seeks to understand how the Immorality Act victimised black women in this way, and what this means for scholarly understandings of the act itself as it relates to the social, economic, and political climate of interwar South Africa and the broader colonial policing of sexuality. In its focus on what it considered the protection of black and white women from miscegenation in mixed-race urban slums, the Immorality Act instead victimised and discriminated against black women, despite proclaiming otherwise. This article argues that the act tacitly confirmed the existence of interracial sexual consent and, importantly, interracial love. By banning interracial sex, the Union of South Africa established itself alongside other colonies as a state which attempted to control the races of its future citizenry. To protect the civilisation of the white race, sex needed to be strictly controlled and normative intervention changed.

Through an analysis of government publications, court cases, newspaper articles, and government correspondence from 1925 to 1948, this article undertakes the following: it analyses the social and political circumstances surrounding the Immorality Act, considering the history of similar regional legislation. It discusses the decade of the 1920s, and interwar South Africa more broadly, to offer the direct context within which the act was passed. Subsequently, it examines the parliamentary process of the Immorality Bill being passed into law, regarding the way black women were positioned by lawmakers through this legislation. These sections clarify how the creation of South African legal culture influenced legislation and how fears over uncontrolled sexuality were curbed. Fourthly, it analyses the immediate after-effects of the Immorality Act through a case study of Gracie Sibiya, charged with immorality in November 1928 alongside her lover, George William Linfoot.

Legislation has the power to make visible and invisible certain members of its population by formulating and representing their sexuality in particular ways. In the colonial context, this making and unmaking of visibility constructed the colonial subject along the lines of sex, gender, race, and urban status. Martin Chanock defines a legal culture as ‘a set of assumptions, a way of doing things, a repertoire of language, of legal forms and institutional processes’ that impact how a country’s laws are approached and applied.¹¹ A legal culture, Chanock continues, ‘embodies a narrative, encompassing both past and future, which gives meaning to thought and actions’.¹² Based on this understanding of legal culture, it is possible to explicate that predominant views by the state and its judiciary impact the way laws are written, debated, codified, and then applied.

South African legal culture was also affected by global anxieties around women’s sexuality that permeated legislation in the early twentieth century, and through laws like the Immorality Act, sexualities became codified and represented in very specific ways. From the late nineteenth century, the British Empire became more involved in the sexual activity of its subjects, and the application of eugenics worked to draw boundaries between what was considered natural and unnatural sex, and moral and immoral sex. Natural, moral sex occurred between a man and a woman of the same race, who were married to each other. Miscegenation was considered ‘natural’, as it was heterosexual, but simultaneously immoral. Homosexuality, on the other hand, was considered both unnatural and immoral.¹³ Jeremy Martens explicates on this further, stating that ‘miscegenation was in many respects the ultimate immoral act because it resulted in “race hybridisation” and ran counter to the standards of “civilised” sexual behaviour’.¹⁴ Sexual control thus became a tool of social control: the state could maintain a distinction between the coloniser and colonised and define civilised and non-civilised sexuality through regulating, monitoring, and restricting sex.¹⁵

Controlling sexuality was particularly urgent in settler colonies like South Africa. Women’s sexualities were the battleground on which this control was exerted, as their reproductive capacities determined the future of the Empire.¹⁶ If settlers were present in colonies to civilise those they considered uncivilised, the regulation of sexuality played a crucial role in fulfilling this objective. Uncontrolled sexuality in colonies, especially that which involved white women and local men, was exceedingly dangerous to the imperial agenda.¹⁷ White women’s sexuality needed to be reserved for white men, safeguarding white supremacy and ensuring the future civilisation of the white race.

Black Peril scares in the period after the South African War (1889–1902), compounded by fears over the ‘poor white’ problem,¹⁸ facilitated the spread of eugenicist ideology amongst the white settler population. Associated with heightened fears over black men’s sexuality and white women’s perceived danger therefrom, Black Peril refers to fears within white society that its women were susceptible to falling prey to what was believed to be black men’s dangerously uncontrolled sexual behaviours.¹⁹ Black Peril scares have historically emerged during periods of uncertainty about the efficacy of colonial rule, playing a role in shaping the dynamics between colonisers and colonised.²⁰ Black Peril was often utilised as a tool of political and social force to create racial hegemony amongst white settlers in instances of economic difficulty. Through the creation of the colonial Other, Black Peril was used to consolidate white virtue.²¹ Thus, in the mind of white settlers, to ensure the continued civilisation of the white population, white sexuality needed to be safeguarded. Empire was heavily invested in controlling the sexuality of its subjects and did so through the strict control of women’s sexualities.

By the 1920s, facing a global colonial culture of fears of miscegenation and mixed-race offspring, South Africa’s lawmakers saw fit to ascribe to and replicate the legal cultures of the colonial world to constrain and control sexuality. This was achieved through the passing of the Immorality Act, Act 3 of 1927. The state adopted a paternalistic role towards white women, intended to reassert patriarchal hierarchy in the face of a crisis of masculinity, and saw single black women in cities as ‘polluting, destabilising influences’ who are responsible for ‘an increase in prostitution and venereal diseases’, a situation that could only be resolved by imposing ‘higher’ standards of morality in line with segregationist thought.²² Androcentric visions of womanhood represented degrees of paternalism and patriarchal control; however, women’s positionalities according to racial demarcations demonstrate that a gendered analysis needs to be intersectional, as the role of race, class, and urban status has an impact on this analysis.²³

The nature of sexuality and sexual acts is that they often occur out of sight, and very few cases garner public attention.²⁴ Based on this assertion, Natasha Erlank argues that, to understand sex and intimacy, one must understand both what happens ‘between sexual and/or married partners and what is created in public spaces that debate and dissect the nature of intimate life’.²⁵ As such, research that analyses the private and the intimate often lacks a coherent physical archive.²⁶ Indeed, the study of sexuality in Africa is ‘profoundly immersed in colonial ugliness’ and instances of pleasure, love, and joy are difficult to locate in archives themselves.²⁷ As a vestige of imperial record keeping, the archive is steeped in Eurocentric preconceptions about sexuality, which branded African sexualities as hypersexual and uncivilised.²⁸ As has been theorised elsewhere, the archive is not a passive repository of documents but a collection of what was considered archivable.²⁹ Subsequently, the voices of women, more particularly black women, have been marginalised in the archiving process. Contending with this relies on the researcher looking for what is unwritten in the archive.³⁰ This is evidenced by the lack of Immorality Act cases available in the archive. These cases were tried in magistrates’ courts, and as these courts do not create a precedent, their records have historically not been archived in South Africa. The few cases that were archived were the most controversial. Where newspaper articles exist covering the results of court cases, they are often short and lack detail. The archive lacks documentation of the everyday repercussions of the Immorality Act on people’s lives. Moreover, searching for instances of love and consensual sex in the archive is an act in decoloniality. In its interaction with European colonial systems, ‘a series of erasures and misrepresentations have been imposed on black sexuality since the onset of coloniality’.³¹ It is by revisiting and reinterpreting these histories that the colonial portrayals of black ‘unrestrained carnality, irrationality, and violence’ can be rectified and reimagined.³²

Research on South Africa’s 1927 Immorality Act remains infrequent, and the act has been the sole focus of only one article, by Martens.³³ In this seminal paper, Martens focuses on the ways that anti-miscegenation legislation worked to bolster white South Africans’ claims of greater civilisation, buttressed by notions of how to protect and uplift the poor white.³⁴ The essay discusses the inherent contradiction of the act: it outlawed interracial sex but not interracial marriage. The act knowingly bypassed this issue; ‘it was primarily intended to mould public opinion and inculcate the idea that sexual relations between blacks and whites were immoral and a threat to civilisation’.³⁵ Martens continues that the act was used as a ‘legitimising ideology’ for the creation and fortification of a white nation.³⁶ This article is a critical engagement with Martens’ essay, expanding the scope of his research and discussing the impact of the act on black women in interwar South Africa.

Amended in 1950, 1957 and 1969, the Immorality Act’s focus shifted through the twentieth century. In its first iteration, the law only restricted those classified as ‘Native’ and ‘European’; in the Immorality Amendment Act, Act 21 of 1950, it was extended to include all ‘non-Europeans’. Research on the act, predominated by Susanne M. Klausen, centres on the 1950 Amendment act and the apartheid's government's attempt to police white men's sexuality. These works, however, do not examine the impact on black women before the 1950s.³⁷ In other instances where the act is mentioned by name, it is often done in passing and the act does not feature as a key concept in historical literature.³⁸ Queer historians have conducted research into the role of the 1969 Amendment Act, which expanded the act from miscegenation to other so-called deviant sexual acts such as homosexuality.³⁹ What this literature does not take into account, however, is that the policing of ‘deviant’ sexuality – and in fact what was classified as deviant – has a more complex history, the groundwork for which was laid by South Africa’s segregationist government in the years prior to apartheid.

Like Martens, Klausen argues that the first iteration of the Immorality Act was aimed at ‘educat[ing] whites […] in whiteness by associating membership in the white race with respectable, “civilized” behavior’.⁴⁰ While Klausen’s research contends that the Immorality Act inflicted ‘tremendous harm’ on black women from 1950 to 1985,⁴¹ this article asserts that the legal double standard imposed on black women commenced as early as 1928. This legislation had a direct impact on black women before its 1950 amendment, and this article broadens Klausen’s argument about the act’s harmful impact on black women to encompass the interwar period when the act was initially passed.

From necessary evil to Black Peril: the history of anti-miscegenation legislation in southern Africa

The Immorality Act did not occur in a vacuum but was the culmination of almost 70 years of local and international debate on eugenics, venereal disease, sex work, and Black Peril. Interracial sex work was a prominent feature of the Cape Colony since at least 1678 after the establishment of the Cape of Good Hope in 1652 by the Dutch East India Company.⁴² In the Cape Colony and the rest of southern Africa, sex work was viewed as a necessary evil for ‘entertaining’ travellers or settlers, and while authorities superficially condemned sex work, sex work was scantly prosecuted until the mid-1880s.⁴³ From the 1880s, miscegenation became increasingly taboo in southern Africa. British notions of racial purity gained traction globally from the 1860s because of the misinterpretation of Charles Darwin’s theories on natural selection.⁴⁴ Giving rise to eugenics, scientific and social practice reinforced prejudice and reflected panic over the future of the white population.⁴⁵ Francis Galton, who coined the term ‘eugenics’, argued that states should intervene in the welfare of their populations to reinforce positive and eradicate negative genetic strains.⁴⁶

In locations where people of different races intermingled, such as colonies, state welfarism was enacted through enhancing control over miscegenation and increased concern for the sexual behaviour of women.⁴⁷ Influenced by Britain’s Purity Campaign and the passage of the Contagious Diseases Act in 1864, the Cape and Natal colonies enacted equivalent contagious diseases acts in 1885 and 1891, respectively.⁴⁸ By registering sex workers, legalising forcible examination of women presumed to be sex workers, and confining women with venereal diseases in hospitals, these acts laid the responsibility for the spread of venereal disease on female sex workers.⁴⁹

The history of racial panic on the Witwatersrand, however, followed a different trajectory. The discovery of gold in 1886 facilitated mass urbanisation, fortification of the migrant labour system, and investment into primary and secondary industries that serviced the mines and the mining population.⁵⁰ Alongside prospective diggers, sex workers – black and white – flooded the Witwatersrand between 1886 and 1889; however, gender ratios remained skewed.⁵¹ Initially attempting to encourage young men to remain on the Rand, the Zuid Afrikaansche Republiek’s (ZAR) government under Paul Kruger encouraged vice: sex work and the sale of liquor. It was necessary, however, to police vice as far as possible (and permissible). Sex workers in the first decades of Johannesburg’s establishment were racially diverse: most were from southern Africa, being Coloured,⁵² white, and black; but from 1895, additional sex workers arrived to fledgling Johannesburg from Belgium, France, Germany, and Russia.⁵³ This influx of young European women, and their association with black men employed on the Rand, heightened local fears over miscegenation and the concomitant immorality encouraged by sex work.⁵⁴

Unregulated sex caused panic in local government, leading to the passage of the ZAR’s own version of the Contagious Diseases Act. The Ontucht Wet (fornication law) was passed in 1897, which attempted to police sex work and specifically interracial sex work. The Ontucht Wet, however, was scarcely enforced. Vice was a necessary social evil for the sake of industrial capitalism on the Rand.⁵⁵ Southern Africa’s colonies, as spaces of racial intermingling, caused significant panic in the minds of colonial and settler lawmakers, civil society, and local populations. The future of the white race was negotiated in colonies across Africa. In southern Africa, various Black Peril scares occurred between 1902 and the 1920s.⁵⁶ These scares reinscribed racial and gendered hierarchies. Safeguarding white women’s sexuality as available only to white men secured the future of the white race.

To mitigate these fears, women’s bodies became sites of struggle for masculinity and state hegemony. The state believed it was its duty to intervene in the sexuality of citizens out of fear for the health and future of the white race and utilised Black Peril to justify segregation.⁵⁷ When the ZAR formally became a British colony in 1902, various acts aimed to control the sexual morality of southern Africans were passed: the Morality Act in the Cape in 1902, an Immorality Act in Natal in 1903, the Immorality Ordinance of 1903 in the Transvaal, and the Suppression of Brothels and Immorality Ordinance of 1903 in the Orange Free State.⁵⁸ These laws had similar goals to those of the Ontucht Wet: to police morality and miscegenation across southern Africa.

The 1920s witnessed another marked shift in the necessity for anti-miscegenation legislation. When women started urbanising, social ills and vice were no longer a necessary evil but cause for panic. Women of all races were at the forefront of state visions of what was considered urban, civilised, and moral, with white women viewed as the ‘guarantors of racial purity and standards’.⁵⁹ Between 1900 and 1920, the combination of efforts to industrialise South Africa’s economy and various local and global economic recessions resulted in white, Afrikaans women urbanising from the 1920s.⁶⁰ These women, new to Johannesburg and lacking in social and economic connections, often performed sex work to supplement their meagre incomes or provide them with their entire income, and lived in mixed-race urban slums.⁶¹

White women’s visibility in these mixed-race slums helped bring issues of miscegenation to the forefront of public fears over the future of white civilisation. The perceived threat of miscegenation, or the fear of white women becoming ‘the sacrificial prey of the black beast unleashed by the breaching of racial boundaries’, was a driver in the funding of hostels for single white women in cities in the 1920s and 1930s, and for anti-miscegenation legislation to be passed and enforced.⁶² The Stallard Commission of 1922 laid the foundation for urban segregation in South Africa amidst the challenge of miscegenation resulting from mixed-race urban slums, where men and women of all races were feared to be involved in deviant sexual activity.⁶³ According to William Beinart, ‘“miscegenation” and social degeneracy [were] explicitly linked’ in the mind of segregationists, and young, white, urban Afrikaans women had the responsibility of protecting civilisation and purity.⁶⁴ Initially concerned with ‘the stabilisation of the white working class and the general improvement of the so-called “white race”’, social welfare informed by the Stallard Commission and other inquiries from the 1920s primarily focused on dealing with the poor white problem.⁶⁵ Part and parcel of redressing the poor white problem was the creation and unification of a white South African nation.⁶⁶ The fortification of whiteness was achieved in one respect through the passing of the Immorality Act and other legislation that enforced physical, economic, social, and sexual segregation.

The 1920s witnessed an increase in urbanisation by black women too, but with differing implications. Between 1911 and 1936, the black female population in Johannesburg grew from 4,357 to 60,992.⁶⁷ South Africa’s migrant labour system intended to keep black women in rural areas tending to domestic matters and have black men migrate to cities for short-term work, remit payments back to the countryside, and ultimately return to rural life, simultaneously ‘safeguarding’ black society and accessing their labour. However, in many instances, young black men would ‘disappear’ into the cities, returning home infrequently or abandoning their families entirely. Consequently, women in reserves faced increasing poverty and urbanised to find their husbands or escape rural gerontocracies, and often settled in cities. Overwhelmingly, black women were unable to access formal employment and relied on sex work or beer brewing to produce an income.⁶⁸

In this period too, the state was increasingly concerned about how poverty and urbanisation put pressure on black family life, known as the ‘urban native question'.⁶⁹ From 1890, the domestic work sector in Johannesburg was predominated by black men.⁷⁰ However, by the 1920s, fears that white women would fall victim to black men in their homes took hold.⁷¹ Black women became the panacea for the Black Peril in the domestic sphere, replacing men as domestic workers and providing black women employment opportunities in cities.⁷² While this idea was initially upheld as a solution to Black Peril, it was soon replaced by new anxieties around racial mixing created by the introduction of black women into white homes. The South African Native Affairs Commission supported the hiring of black women as domestic workers, thereby releasing more men for migrant labour on the mines – but warned that domestic work had the potential of exposing black women to ‘much temptation and the danger of moral ruin’.⁷³ While reports such as these paid lip service to the potential moral ruin black women could face, the treatment of black women by legislation such as the Immorality Act speaks to reinforcing colonial narratives of what Barbara Bush describes as the ‘promiscuous, sexualised [black] woman’.⁷⁴ Furthermore, the propagation of the Black Peril notion served to deflect attention from the actual vulnerability of black women to sexual assault by white men.⁷⁵

Black women’s newfound independence incited similar fears over the spread of venereal disease and the potential for unregulated sex and miscegenation. The Immorality Act was created in response to urbanisation and growing anxieties about the city itself.⁷⁶ In the state’s imagination, the city had connotations of sex, segregation, sanitation, civilisation, morality, and miscegenation. While the impact of miscegenation on black and white women was perceived differently, women collectively were seen as both the cause and victims of miscegenation, which required more serious legislating. It is within this context that the Immorality Act was forged, criminalising a matter that was no longer seen as a necessary evil but a danger to the future of South Africa.

The Immorality Act, 1927: an imagined phobia

On 3 March 1926, Minister of Justice Tielman Roos presented an Immorality Bill to Parliament. This bill had been drafted from at least December 1925 and was intended to be passed in 1926.⁷⁷ The bill sought to prohibit ‘illicit carnal intercourse […] not amount[ing] to rape, an attempt to commit rape, indecent assault, or a contravention of section two or four of the Girls’ and Mentally Defective Women’s Protection Act, 1916 (Act No. 3 of 1916)’⁷⁸ between Europeans and Natives, including both transactional and non-transactional sexual encounters. The act would also incorporate and nullify the disparate immorality legislation across South Africa.⁷⁹ According to Roos, ‘this Bill [would] remedy an injustice which has been felt for a long time’, referring to sexual relations between Europeans and Natives.⁸⁰

There was considerable debate in parliament between the introduction of the Immorality Bill and the passing of the Immorality Act two years later. Despite large-scale support for a law such as this, one aspect of this debate was the extremity of penalties for those convicted.⁸¹ Various drafts of the bill reflect a broader discussion on the severity of punishment for those who contravened the act. A third draft from 1927 reads that the convicted person ‘shall be guilty of an offence and liable on conviction of punishment to imprisonment for a period not exceeding five years, and, if a male person, to whipping not exceeding fifteen strokes’.⁸² The editor of the bill crossed out ‘five’, replaced it with ‘four’, crossed this out again and rewrote ‘five’; he also struck out the second half of the sentence permitting the use of corporal punishment.⁸³

This is a telling reflection of the contention that ensued amongst parliamentarians on how to punish potential offenders. Some legislators held the view that corporal punishment for immorality cases was excessively harsh, while others believed it was not severe enough.⁸⁴ On 2 February 1927, for instance, member of parliament Sir William Macintosh opposed the bill quite strongly, arguing that it was criminalising ‘something that is quite natural’; he believed the bill ‘goes too far’. His argument against the bill was that if a young white man met a black woman and ‘makes a suggestion to her – nothing more’, he is then guilty under the act and liable for imprisonment.⁸⁵ Macintosh was strongly opposed by members of parliament Nel and Oost, who believed that black men making suggestions to white women was in fact unnatural; they argued that ‘every right-thinking South African, whether black or white, is in favour of preserving the purity of his race’.⁸⁶ The necessity of the act was also questioned, with other members of parliament believing that miscegenation was a minor matter which did not require legislating against.⁸⁷

Despite disagreements in parliament over the scope and severity of the bill, it was generally agreed that some sort of legislation was necessary to safeguard racial purity. The act was intended to protect ‘the poor backvelder’ ­– the white man who lived in ‘native’ locations and therefore faced a higher risk of temptation, the main argument posited by Martens.⁸⁸ However, Roos further argued that the act was necessary for ‘protecting native women’, an aspect Martens does not analyse.⁸⁹ However, this protection of black women is unconvincing. Black women were discussed as regards their propensity to blackmail white men with an Immorality Act charge, and parliamentary debate discussed the supposed danger white men faced at the passing of the Immorality Bill into law, should such men be falsely accused.

Member of parliament Willem Hendrik Rood argued, ‘there ought to be something protecting the man, so that unscrupulous, characterless native girls cannot charge an innocent man’.⁹⁰ These ideas speak directly to global discourses on women falsely accusing men of rape. Relying on discourses from the mid-1880s in Britain, in colonies where race and gender compounded, indigenous women were exhibited as particularly liable to falsely accusing white men of rape for individual gain.⁹¹ A similar precedent was set in the nineteenth-century Cape; both class and race were employed in determining culpability for rape. The notion that rape stripped a woman of her honour became complex in the case of black women, where ‘the possibility that black women had honour to lose’ was rejected.⁹² While the Immorality Act in South Africa was distinct from rape accusations, the discourse around promiscuous, lower-class women accusing well-off men permeated parliamentary discussions on the Immorality Act and reflected the longer history of the creation of South African legal culture. The parliamentary discussions held in the drafting of the Immorality Act therefore sought to protect white men from black women, and not the other way around as Martens argues.⁹³

The necessity of safeguarding black women put forward by Roos is, furthermore, unconvincing since the Immorality Bill was originally drafted solely to protect white women and to penalise ‘natives and coloured men’ for having a ‘carnal connection’ with white women.⁹⁴ The original draft of the bill did not include penalties for white men engaging in similar carnal connections with black women. This was amended to include the punishment of any man or woman engaging in miscegenation because various women’s associations – the Women’s Association of South Africa, the women's wing of the South African Party of the Transvaal, and the Board of Women in Natal – lobbied for the powers of the bill to be extended.⁹⁵ These women’s organisations sought to offer ‘the native woman […] a certain amount of protection under the Bill similar to that of the white woman against the native man’.⁹⁶

Once the Immorality Act was passed, it proved difficult to prosecute since the sexual act by nature leaves little evidence. In accessing archival sources on acts of sex, instances of sex and love are difficult to find.⁹⁷ The archive does not hold accurate statistics of instances of interracial sex before it was legislated against in 1927, or after. Klausen argues that interracial sex was rampant in the 1950s, but the low conviction rates in the 1930s show that the early iteration of the act was not able to successfully police miscegenation in the way it was after 1950.⁹⁸ Once the act was passed, convictions for immorality offences were low. In 1929, only 107 cases reached a conviction, in 1933, 42 black women were convicted of immorality offences, while in 1935, only 3 black women were convicted.⁹⁹ Based on these numbers, it can be shown that the evil miscegenation wrought was, in fact, an imagined phobia.

‘Whom she loved’: the case of Gracie Sibiya

Three years after the Immorality Act was passed, on 24 January 1930, Roos requested ‘a return showing the number of convictions of Europeans and Natives and sentences imposed for contraventions of the provisions of Act No: 5 of 1927’ for 1929.¹⁰⁰ These statistics showed how the act was implemented in its initial years. In 1929, 98 of 107 individual convictions under the act were against white men and black women, and the remaining 9 cases were against black men and white women.¹⁰¹ This emphasises that the state’s attempt to regulate the sexuality of white men achieved moderate success, but policed a negligible number of cases.¹⁰² Moreover, the Black Peril fears that contributed to the creation of the act were disproven by its implementation rates, as very few cases of miscegenation involving white women were convicted. In March 1931, the commissioner of police wrote that the act had been successful in stopping all open relationships on the mines between white men and black women, and reduced the number of black sex workers at the mines as ‘Europeans are afraid to have relations with them’.¹⁰³ This argument can be contested, however, as records from 1929 show that white men and black women were, in fact, the main perpetrators of miscegenation. White men made up 45 and black women 53 of the total of 107 convictions for that year.¹⁰⁴

Whereas both parties would be tried for committing miscegenation, the outcomes of the trials could be very different, as the result of one trial did not determine the outcome of the other, and couples were charged individually under the act. The numbers illustrate that the sum of charges was low. A document created by the director of census demonstrates that of the 45 white men and 53 black women prosecuted under the Immorality Act in 1929, 33 and 19, respectively, were withdrawn.¹⁰⁵

From at least 1928, a pattern emerged where black women were disproportionately convicted under Section 2 of the 1927 Immorality Act. Section 1 of the act banned European and Native men from engaging in illicit carnal intercourse with a woman of the opposing race, and Section 2 barred European and Native women from allowing a man of another race to have an illicit carnal connection with her. Because women were charged under Section 2 of the act and men under Section 1, two separate trials would ensue, often with different judges, evidence, lawyers, and court proceedings. Judges would assess the merits of each individual case, without regard for the case against the other party. This resulted in convictions under the act being disproportionately skewed against black women, whose evidence was considered substantial enough in her own trial to convict her but not sufficiently adequate in the adjacent man’s trial to convict him. This matter was reported in the Rand Daily Mail where a case against a white man and a black woman resulted in the acquittal of the man and a conviction of the woman with a sentence of nine months hard labour. When questioned on this anomaly, Minister of Justice Oswald Pirow stated that he did not interfere as the woman had pleaded guilty and that the judge had acted properly based on the evidence available.¹⁰⁶ Despite an immorality charge needing two people to commit the crime, the separation of charges and trials led to instances where one party was convicted and the other acquitted.

This pattern continued and attention was given to this disparity between 1928 and 1931. In 1930, the Attorney-General Lennox Ward of Natal wrote to Pirow and outlined a case where Charles Henry Ford, a white man, and Evelina Magutulela, a black woman, were simultaneously charged under the Immorality Act. Ford was acquitted but Magutulela convicted. Ward wrote that ‘juries in this Province consistently refuse to convict a white man in respect of illicit carnal intercourse with a native woman notwithstanding clear and definite evidence as to the commission of the offence’, despite ‘direct evidence of independent eye witnesses’.¹⁰⁷ Ward argued that the aim of the legislation was being ‘deliberately defeated’ by the justice system.¹⁰⁸ This is one of many cases reported during this period where the white man’s trial was acquitted, suspended, or successfully appealed but, irrespective of this, the black women’s trial resulted in conviction.¹⁰⁹

One particularly notable case in this instance is that of Gracie Sibiya.¹¹⁰ In November 1928, in Richmond, Natal, Sibiya, a 23-year-old domestic worker, was charged for contravening the Immorality Act as she ‘did wrongfully and unlawfully permit George William Linfoot, a European Male, to have illicit carnal intercourse with her, the said George William Linfoot not being her husband’.¹¹¹ The attorney-general decided that since Sibiya was ‘a poor, and uneducated native’, her trial should proceed summarily, or speedily.¹¹² Imported from the Cape Colony’s legal code, a summary trial took place when an accused person pleaded guilty and there was no opposition to their charges.¹¹³ The Criminal Procedure and Evidence Act, Act 31 of 1917, also stipulated that a summary trial could be held at the magistrate’s discretion if ‘the offence charged is of a trivial nature’. In more serious cases, the magistrate would conduct a preparatory examination to determine if there was sufficient evidence for trial.¹¹⁴

Sibiya testified that she was employed by Linfoot to conduct domestic work. On the day she was arrested, Shushu Sibiya,¹¹⁵ Gracie’s brother, had visited Linfoot’s house asking to borrow a torch. Sibiya had asked Shushu to return to Linfoot’s house shortly because she wanted him to accompany her home, as it was late in the day. When Shushu did not return, Sibiya fell asleep in a chair. Linfoot offered Sibiya his bed to sleep in. She agreed and slept in his bed while he sat on a nearby chair in his pyjamas. Shushu arrived at the house again, this time with police. Sibiya and Linfoot were accused of having sex and arrested.¹¹⁶ In her summary trial, Sibiya pleaded not guilty, but between her evidence, Shushu’s testimony, and police testimony, she was convicted and sentenced to three months hard labour, which she served at Richmond Gaol.¹¹⁷ Crucially, the police testified that when they arrived at Linfoot’s home with Shushu, Linfoot blew out the candle to conceal himself and Sibiya in darkness, that Linfoot had attempted to keep the police out by force, that Sibiya had ‘only a covering over the upper part of her body’, and that the second pillow in Linfoot’s bed looked as though someone had been lying on it.¹¹⁸

Linfoot, on the other hand, was charged under Section 1 of the Immorality Act for ‘having carnal connection’ with Sibiya. Unable to post bail of £100, Linfoot remained in gaol for a month in the lead-up to his trial. His bail was later reduced to £50, which he then paid. At his trial on 4 February 1929, he was acquitted. The magistrate who heard Linfoot’s case found that the evidence given by Shushu was fabricated and disproven by other witnesses.¹¹⁹ Importantly, the very evidence that was used to convict Sibiya was now proven false in Linfoot’s trial. At Linfoot’s trial, Shushu testified that on the morning of the incident, Sibiya ‘said she was going to her friend Linfoot whom she loved’.¹²⁰ Police testified to the same important incidents as they did in Sibiya’s trial, and yet Linfoot was found not guilty.¹²¹

The Sibiya/Linfoot case illustrates two important features of the Immorality Act: it tacitly codified a double standard against black women, whose evidence was appraised as proof in their trials but not considered trustworthy in the adjacent men’s trials; and, secondly, the way the act was written proved the existence of consensual interracial sex, and interracial love.

By the 1920s, not only had miscegenation become illegal country-wide but also increasingly taboo.¹²² Yet this did not mean that these relationships did not occur, only that they were done covertly, literally behind closed doors. This represents another fundamental problem with the 1927 Immorality Act: it was increasingly difficult to prosecute owing to the sexual nature of the evidence.¹²³ If police did not catch the offending couple in the act, it was believed that the only person who could testify to penetrative sex having occurred was the woman.¹²⁴ After the 1957 Amendment Act, however, the law ‘enhanced courts’ abilities to secure convictions by providing a far broader legal definition of interracial immorality’.¹²⁵ After 1957, the burden of proof on women to be able to prove vaginal penetration was no longer necessary for the courts in the manner it was under the original iteration of the act.

The weight given to women’s testimony was complicated in cases with black women, whose evidence of alleged penetration was treated with scepticism in men’s trials. In the inquiries that occurred into the Immorality Act between 1928 and 1937, the matter of parallel trials resulting in different sentences was constant, to the detriment of black women. The case of Sibiya and Linfoot is one of many that captured the public’s attention.¹²⁶ In February 1931, the efficacy of the Immorality Act was called into question as the deputy commissioner of the South African Police (SAP) reported that while the act had ‘worked satisfactorily’, the police were unable to apply it as it was difficult to gain evidence that a contravention had occurred. The attorney-general further added that convictions under the act were often disproportionately skewed against black women with biracial children, as ‘it is frequently impossible to establish a case against the European male’, to the detriment of black women.¹²⁷ In instances where miscegenation had resulted in mixed-race children, women’s role as caregivers worked to disservice them in Immorality Act cases. Maternity was simpler to prove, and the existence of biracial children was evidence that miscegenation had occurred. The state’s assumptions about black women as deceptive disadvantaged them, and so the compounding intersections of race, gender, and class implicated black women significantly.

Class and financial access had an impact on black women in trials and Sibiya’s case is illustrative in this regard. Sibiya was described as ‘indigent, uneducated, and […] poor mentally’, and despite pleading not guilty, she was given a summary trial. It seems that in the instance of a plaintiff being poor and uneducated, as Sibiya was purported to be, a summary trial was favoured. Linfoot, able to pay his reduced bail bond, later instructed his solicitor to appeal Sibiya’s case.¹²⁸ Despite being labelled as poor and uneducated, Sibiya exhibited her careful intelligence in the court proceedings.

This trial garnered the attention of the policymakers of colonial Natal because Sibiya did not passively accept her arrest and charges. When the case was escalated from the Natal provincial Criminal Investigation Department to the SAP’s deputy commissioner in March 1929, a statement from Frederick George Page, chairman of the Richmond Local Board, states that Sibiya threatened that if she were prosecuted, ‘she would disclose the names of other Europeans guilty of such offences’.¹²⁹ This does not evidence a woman who was ‘poor mentally’, but one who was shrewd. It was, however, the intersection of race, gender, and class that resulted in a summary trial. Less able to access formal education, afford legal counsel, or pay bail, black women could not defend themselves in the same manner that white men could. By hiring a solicitor, Linfoot was able to prove that Shushu had committed perjury.¹³⁰ Despite this revelation, Sibiya’s guilty verdict remained standing.

Shushu’s testimony, particularly the phrase ‘whom she loved’, is important here, as he referred to Linfoot and Sibiya’s relationship as love, not ‘carnal connection’ or a similar phrase. Moreover, there are instances of intimacy and tenderness in this account that imply the relationship between Linfoot and Sibiya was more than professional. First, it was agreed on in all versions of the evidence that Linfoot had offered Sibiya to sleep in his bed while he slept in a chair.¹³¹ The question arises: why would Linfoot make such an accommodation for someone he did not care for? While this could potentially be a lie to conceal their sexual relations, there is an underlying suggestion of tenderness between the two. Secondly, Linfoot paid his solicitor to assist Sibiya after her conviction. This can be interpreted as a response to guilt over the trial’s outcome, but it is equally plausible that Linfoot and Sibiya shared an emotional connection, which motivated his effort to assist her.

Nine years later, the Magisterial Conference in the Transkei in 1937 recommended that Immorality Act cases be tried simultaneously, arguing that separate trials invariably lead to unequal prosecution.¹³² During the months of debate on this issue, Solicitor-General J. D. M. Rosenow wrote to the Magisterial Conference and made various points, including that ‘my efforts are always directed towards the punishment of the European male rather than the native female’; that circumstances where one person was charged and the other acquitted were unavoidable; and, finally, that white men were more often than not acquitted because courts were reluctant to accept evidence from black women, as ‘it would be to the interest of a low-class native women who has a child, to saddle some rich European male with the paternity’.¹³³ It seems the irony was lost on Rosenow. Ten years after the passage of the Immorality Act, Rood’s assertion that men ought to be protected from false accusations by ‘unscrupulous, characterless native girls’ was reflected directly in the promulgation of the act itself.¹³⁴

Ideologies of women as natural liars, who falsely accused men of rape (or miscegenation in this case), coupled with colonial stereotypes of black people as ‘dangerously sexual’, worked to create a dichotomy of women in the Immorality Act: the endangered white woman, in need of protection from allegedly hypersexual black men, and the supposedly conniving black woman who did not require the same protection.¹³⁵ Ultimately, it was decided by the United Transkeian Territories General Council in 1937 that in cases where a white man had been acquitted of a charge, the black woman in the parallel trial would be given a suspended sentence.¹³⁶ Black women still bore the brunt of a conviction, although suspended.

Miscegenation was not only on the radar of white policymakers but black government representatives too. In Natal in 1946, a case caused a stir in the local media and amongst the Native Representative Council for Natal, wherein an Immorality charge was brought against a white man, Siegfried Kohrs, and a black woman, Ntombane Zita. According to articles published by The Natal Witness and The Sunday Times in December 1946, Kohrs was charged for making ‘friendly overtures’ to Zita since 1944, resulting in the birth of a child. Kohrs was found guilty and sentenced to twelve months imprisonment with hard labour, suspended for three years ‘on condition that during the period he is not again found guilty of a crime of an immoral or sexual nature’. Zita, on the other hand, was sentenced to six months hard labour without suspension by a different magistrate.¹³⁷ Prominent members of the black community, such as L. P. Msomi from the Native Representative Council, protested this clear example of racial discrimination. In correspondence between Msomi and Minister of Justice Harry Lawrence, Msomi argues that ‘we the leaders of the African people know that the virdict [sic] in this case, perhaps, may not represent what is best in the justice of this country and hence my appeal to you on behalf of poor Ntombane’.¹³⁸ The minister’s response to Msomi echoed the double standard enshrined in the Immorality Act itself: apathy, and so-called regret, over the ‘unfortunate mistake’ that had occurred, with no attempt to correct the situation or give redress.¹³⁹

Despite lacklustre attempts at restoration, the inherent double standard set by lawmakers in the Immorality Act resulted in black women being punished more harshly across South Africa. When drafting the Immorality Act, several contradictions were written into law that had far-reaching implications after its promulgation. The first was that miscegenation was outlawed but interracial marriage was not.¹⁴⁰ Hence the Immorality Bill, and later the Immorality Act, knowingly bypassed the matter of interracial marriage, with Roos acknowledging the loophole his bill created.¹⁴¹ The bill was not intended to be a comprehensive measure against miscegenation but a normative intervention.¹⁴² Indeed, Rood argued, ‘if we succeed by this Bill in preventing 75 per cent of the evil, we shall have done well’.¹⁴³ The result of this intentional loophole was that if a couple was in contravention of the Immorality Act, they could avoid prosecution by becoming married. It is important to note that in the case of Sibiya and Linfoot, they were both charged for having carnal connection with a person of the other race and not being married to each other. If the carnal connection occurred within the confines of what was considered marital conjugal rights, this would be entirely legal and permissible, albeit taboo.

Conclusion

Some of the first pieces of legislation passed by the apartheid government in 1949 and 1950 were the Prohibition of Mixed Marriages Act and the Immorality Amendment Act, respectively. These acts sought to close the loophole created by the Immorality Act of 1927 by banning miscegenation between any races, not just black and white, and by banning interracial marriage.¹⁴⁴ In seeking to understand South Africa’s history of anti-miscegenation legislation, historians often turn to these two acts. In so doing, they ignore a crucial piece of legislation that laid the groundwork for the apartheid state’s harsh controlling of interracial sex.

This article has argued that South Africa’s 1927 Immorality Act victimised and disproportionately prosecuted black women for committing miscegenation prior to the 1950 Amendment Act. The separation of charges in Sections 1 and 2 of the act, which criminalised men and women differently, resulted in higher instances of black women being convicted of immorality, while the white men accused were acquitted on the same evidence. This shows how parliamentarians’ mistrust of black women as deceptive, despite not being written explicitly into law, impacted women when it came to court cases.

The case of Gracie Sibiya and George William Linfoot was used to show how, within a year after its passage into law, Immorality Act convictions were disproportionately skewed against black women, whose testimony was damning in their own trials but treated with scepticism in white men’s concurrent trials, resulting in acquittal or suspension. The response to this discrepancy was noted by judicial representatives, however – as in the case of the 1937 United Transkeian Territories General Council Session and other inquiries into the act – only lip service was paid to this discrepancy and changes in prosecution were not enforced.

Interracial sex was not only a feature of South Africa and broader British Africa but a global phenomenon in settler colonies in Africa, Asia, North and South America, and the Caribbean. Where South Africa’s legislation is different – and where this article contributes to the historiography on race, sex, and empire – is the tacit acknowledgement of interracial love and consent created by the Immorality Act. Similar legislation in Southern Rhodesia, Kenya, and Papua New Guinea, for example, criminalised all interracial sex between an indigenous man and a white woman as rape.¹⁴⁵ South Africa’s exceptionalism, to borrow from Mahmood Mamdani, lies in its separation of immorality from rape and in the supposed guise of protecting black and white women alike, when in practice the act aimed to protect poor white men from what they believed to be black women’s sexual advances.¹⁴⁶

Acknowledgements

This research was undertaken as part of a master’s in science in African Studies at the University of Oxford, under the kind supervision of Dr Peter Brooke. A version of this article was presented at the “Sex and Publics: Interdisciplinary Debates on Southern Africa” conference, where participants offered helpful advice. I am grateful to Drs Prinisha Badassy, Annie Devenish, and Emily Bridger for their feedback on this article, and to the editorial board and reviewers at the South African Historical Journal for their helpful critiques.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Notes on contributors

Erin Hazan

Erin Hazan is a PhD candidate at the University of the Witwatersrand History Department, funded through the Southern Centre for Inequality Studies and a “Next Generation Social Sciences in Africa” fellowship by the Social Science Research Council. She is currently conducting research into expressions of gender for women prisoners imprisoned in the Transvaal during the twentieth century. Her previous research on the gendered nature of the 1927 Immorality Act was the focus of a master’s study in African Studies at Oxford University. She has a keen focus on gender and feminist history.

Notes

1 National Archives of South Africa (hereafter NASA), JUS/1/600/23, ‘Preparatory Examination’, 1 March 1930.

2 NASA, JUS/1/600/23, ‘Preparatory Examination’, 5 March 1930.

3 NASA, JUS/1/600/23, ‘Petition’, 28 May 1930.

4 The term ‘Native’ is offensive to many black South Africans. The word is only used here for the sake of historical accuracy or in a quotation.

5 NASA, JUS/1/600/23, ‘Preparatory Examination’, 10 March 1930.

6 Ibid.

7 NASA, JUS/1/600/23, ‘Petition’, 28 May 1930.

8 P. Levine, Eugenics: A Very Short Introduction (New York: Oxford University Press, 2017), 1.

9 L. Naicker, ‘The Role of Eugenics and Religion in the Construction of Race in South Africa’, Studia Historiae Ecclesiasticae, 38, 2 (2012), 2.

10 The term ‘black’ herein refers to individuals of African descent.

11 M. Chanock, The Making of South African Legal Culture: 1902–1936: Fear, Favour and Prejudice (Cambridge: Cambridge University Press, 2004), 23.

12 Ibid.

13 D. Jeater, ‘Civilisation and Morality: Manichaean Attitudes among the Occupiers of Southern Rhodesia, 1890–1905’, in Marriage, Perversion, and Power (Oxford: Oxford University Press, 1993), 2.

14 J. Martens, ‘Citizenship, “Civilisation” and the Creation of South Africa’s Immorality Act, 1927’, South African Historical Journal, 59, 1 (2007), 234.

15 A. L. Stoler, ‘Making Empire Respectable: The Politics of Race and Sexual Morality in Colonial Cultures’, American Ethnologist, 16, 4 (1989), 635; A. L. Stoler, Carnal Knowledge and Imperial Power: Race and the Intimate in Colonial Rule (Berkeley: University of California Press, 2010), 42; P. Grossman, ‘Why Were Colonial Powers Interested in Sexuality?’ Midlands Historical Review, 2 (2018), 2–3.

16 R. O’Hanlon, ‘Gender in the British Empire’, in J. Brown and W. Louis, eds, The Oxford History of the British Empire: Volume IV: the Twentieth Century (Oxford: Oxford University Press, 1999), 2; D. D. Alessio, ‘Domesticating “the Heart of the Wild”: Female Personifications of the Colonies, 1886–1940’ Women’s History Review, 6, 2 (1997), 242.

17 P. Levine, ‘Sexuality, Gender, and Empire’, in P. Levine, ed., Gender and Empire (Oxford: Oxford University Press, 2004), 134–155.

18 The ‘poor white problem’ speaks to a set of fears in southern Africa from as early as 1892 over a group of whites who lived in poverty. The anxieties over the future of the white race culminated in the Carnegie Commission report published in 1932, which argued for racial segregation and social welfare for poor whites, ensuring the maintenance of white supremacy and civilisation.

19 For more on Black Peril and the poor white problem, see D. Anderson, ‘Sexual Threat and Settler Society: “Black Perils” in Kenya, 1907–30’, Journal of Imperial and Commonwealth History, 38, 1 (2010); J. McCulloch, Black Peril, White Virtue: Sexual Crime in Southern Rhodesia, 1902–1935 (Bloomington: Indiana University Press, 2000); L. Koorts, ‘“The Black Peril Would Not Exist if It Were Not for a White Peril that Is a Hundred Times Greater’: D.F. Malan’s Fluidity on Poor Whiteism and Race in the Pre-Apartheid Era, 1912–1939’, South African Historical Journal, 65, 4 (2013), 555–576; T. Willoughby-Herard, Waste of a White Skin: The Carnegie Corporation and the Racial Logic of White Vulnerability (Oakland: University of California Press, 2015); British Medical Journal, ‘The “Poor-White” Problem in South Africa’, British Medical Journal, 2, 3788 (1933); Round Table, ‘The Poor White in South Africa: The Carnegie Commission Report’, Round Table, 23, 91 (2008), 605–618.

20 P. Scully, ‘Rape, Race, and Colonial Culture: The Sexual Politics of Identity in the Nineteenth Century Cape Colony, South Africa’, American Historical Review, 100, 2 (1995), 338.

21 Anderson, ‘Sexual Threat’, 48.

22 B. Bush, ‘Motherhood, Morality, and Social Order: Gender and Development Discourse and Practice in Late Colonial Africa’, in J. Hidge, G. Hödl, and M. Kopf, eds, Developing Africa: Concepts and Practices in Twentieth-Century Colonialism (Manchester: Manchester University Press, 2014), 4.

23 C. Walker, Women and Gender in Southern Africa to 1945 (Cape Town: D. Philip, 1990), 6–7.

24 N. Erlank, Convening Black Intimacy: Christianity, Gender, and Tradition in Early Twentieth-Century South Africa (Johannesburg: Wits University Press, 2022), 3.

25 Ibid.

26 A. Cvetkovich, ‘In the Archives of Lesbian Feelings: Documentary and Popular Culture’, Camera Obsurca, 17, 1 (2002), 112.

27 N. Erlank and S. M. Klausen, ‘Researching African Histories of Sexuality: In Praise of Excavating the Erotic’, Journal of the History of Sexuality, 32, 1 (2023), 86.

28 Ibid., 87; P. D. Gqola, Rape: A South African Nightmare (Johannesburg: Jacana Media, 2019).

29 A. Mbembe, ‘The Power of the Archive and its Limits’, in C. Hamilton, V. Harris, J. Taylor, M. Pickover, G. Reid and R. Saleh, eds, Refiguring the Archive (Dordrecht: Springer, 2002), 19.

30 A. L. Stoler, Along the Archival Grain: Thinking through Colonial Ontologies (Princeton: Princeton University Press, 2009), 3.

31 S. Osha, ‘Unravelling the Silences of Black Sexualities’, Agenda, 2, 1 (2004), 92.

32 Ibid.

33 Martens, ‘Citizenship’, 223–241.

34 ibid.; J. Hyslop, ‘White Working-Class Women and the Invention of Apartheid: “Purified” Afrikaner Nationalist Agitation for Legislation Against “Mixed” Marriages, 1934–9’, Journal of African History, 36, 1 (1995), 57–81; W. Sollors, Neither Black nor White Yet Both: Thematic Explorations of Interracial Literature (New York: Oxford University Press, 1997), 402.

35 Martens, ‘Citizenship’, 235.

36 Ibid., 228.

37 S. M. Klausen, ‘For the Sake of the Race: Eugenic Discourses of Feeblemindedness and Motherhood in the South African Medical Record, 1903–1926’, Journal of Southern African Studies, 23, 1 (1997), 27–50; Martens, ‘Citizenship’, 223–241; S. M. Klausen, ‘Pining for Purity: Interracial Sex, the South African Immorality (Amendment) Act (1950), and “Petty” Apartheid’ in C. Schields and D. Herzog, eds, The Routledge Companion to Sexuality and Colonialism (Oxford: Routledge, 2021), 219–229; S. M. Klausen, ‘“Do You Call Yourself a White Man?” Nationalism, Criminalization of Interracial Sex, and the Policing of White Male (Hetero)sexuality in South Africa during Apartheid’, American Historical Review, 127, 1 (2022), 159–193.

38 W. Beinart, Twentieth Century South Africa (Oxford: Oxford University Press, 2001), 77.

39 M. Gevisser and E. Cameron, Defiant Desire: Gay and Lesbian Lives in South Africa (Braamfontein: Ravan Press, 1994).

40 Klausen, ‘Pining for Purity’, 220.

41 Klausen, ‘Do You Call Yourself a White Man?’, 160.

42 E. van Heyningen, ‘The Social Evil in the Cape Colony 1868–1902: Prostitution and the Contagious Diseases Acts’, Journal of Southern African Studies, 10, 2 (1984), 170; I. Thusi, ‘Policing Sex: The Colonial, Apartheid and New Democracy Policing of Sex Work in South Africa’, Fordham International Law Journal, 38, 1 (2015), 208.

43 Thusi, ‘Policing Sex’, 210.

44 G. Jones, Social Darwinism and English Thought: The Integration Between Biological Thought and Social Theory (New Jersey: Atlantic Highlands, 1980), 1.

45 Levine, Eugenics, 1–2.

46 Jones, Social Darwinism, 99.

47 O’Hanlon, ‘Gender in the British Empire’, 2.

48 R. Hyam, Empire and Sexuality: The British Experience (Manchester: Manchester University Press, 1990), 63; C. van Onselen, Studies in the Social and Economic History of the Witwatersrand, 1886–1914 (Harlow: Longman, 1982), 106–107; Thusi, ‘Policing Sex’, 219.

49 Van Onselen, Studies, 106; Van Heyningen, ‘The Social Evil’, 172; Hyam, Empire and Sexuality, 63–64.

50 J. Belich, Replenishing the Earth: The Settler Revolution and the Rise of the Anglo-Word, 1783–1939 (New York: Oxford University Press, 2009), 379–380.

51 Van Onselen, Studies, 106, 5.

52 ‘Coloured’ refers to a racial group in South Africa of mixed-race origin.

53 Van Onselen, Studies, 107–108.

54 Ibid., 115–118.

55 Van Onselen, Studies, 125–126.

56 Thusi, ‘Policing Sex’, 226; R. Morrell, From Boys to Gentlemen: Settler Masculinity in Colonial Natal, 1880–1920 (Pretoria: Unisa Press, 2001), 262; E. Thornberry, Colonizing Consent: Rape and Governance in South Africa’s Eastern Cape (Cambridge: Cambridge University Press, 2018), 19.

57 Klausen, ‘For the Sake of the Race’, 48; Thornberry, Colonizing Consent, 19–20.

58 Thusi, ‘Policing Sex’, 226; Van Onselen, Studies, 136–137, 105; Beinart, Twentieth Century South Africa, 66; NASA, JUS/1/600/23, ‘Schedule’.

59 T. Keegan, ‘Gender, Degeneration and Sexual Danger: Imagining Race and Class in South Africa, ca. 1912’, Journal of Southern African Studies, 27, 3 (2001), 460.

60 Ibid., 462–463; Hyslop, ‘White Working-Class Women’, 61; C. Hart and S. Parnell, ‘Church, State and the Shelter of White Working-Class Women in Johannesburg Prior to World War Two’, South African Geographical Journal, 71, 1 (1989), 25.

61 K. Jochelson, ‘Sexually Transmitted Diseases in Nineteenth- and Twentieth-Century South Africa’, in P. Setel, M. Lewis, and M. Lyons, eds, Histories of Sexually Transmitted Diseases and HIV/AIDS in Sub-Saharan Africa (London: Greenwood Press, 1999), 221; Hart and Parnell, ‘Church, State’, 27; S. Dubow, Racial Segregation and the Origins of Apartheid in South Africa, 1919–36 (New York: Palgrave Macmillan, 1989), 31–33.

62 Keegan, ‘Gender, Degeneration and Sexual Danger’, 464; Hart and Parnell, ‘Church, State’, 25.

63 Stallard Commission, 1922, quoted in M. Mamdani, Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism (Princeton: Princeton University Press, 1996), 93.

64 Beinart, Twentieth Century South Africa, 72; Keegan, ‘Gender, Degeneration and Sexual Danger’, 464.

65 D. Posel, ‘The Case for a Welfare State: Poverty and the Politics of the Urban African Family in the 1930s and 1940s’ in S. Dubow and A. Jeeves, eds, South Africa’s 1940s: Worlds of Possibilities (Cape Town: Double Storey Books, 2005), 64–65.

66 Martens, ‘Citizenship’, 226.

67 D. Gaitskell, ‘“Christian Compounds for Girls”: Church Hostels for African Women in Johannesburg, 1907–1970’, Journal of Southern African Studies, 6, 1 (1979), 48.

68 Jochelson, ‘Sexually Transmitted Diseases’, 223–224.

69 Posel, ‘The Case for a Welfare State’, 64.

70 Van Onselen, Studies, 8.

71 Thusi, ‘Policing Sex’, 226–227; Keegan, ‘Gender, Degeneration and Sexual Danger’, 469.

72 Hart and Parnell, ‘Church, State’, 25.

73 SANAC Report, Vol. IV Minutes of Evidence, 1904, quoted in Gaitskell, ‘Christian Compounds’, 45.

74 Bush, ‘Motherhood, Morality’, 2.

75 Thornberry, Colonizing Consent, 21.

76 C. Burns, ‘Controlling Birth: Johannesburg, 1920–1960’, South African Historical Journal, 50, 1 (2004), 172.

77 NASA, JUS/1/600/23, ‘Immorality Bill’.

78 The Girls’ and Mentally Defective Women’s Protection Act, Act 3 of 1916, criminalised sexual encounters with girls under the age of 16 and women who were considered mentally ill and unable to give consent.

79 NASA, JUS/1/600/23, ‘Immorality Bill’; NASA JUS/1/600/23, ‘Schedule’.

80 South Africa, Parliamentary Debates, House of Assembly, 3 March 1926, 1193 (Tielman Roos).

81 Martens, ‘Citizenship’, 223.

82 NASA, JUS/1/600/23, ‘Immorality Bill’.

83 Ibid.

84 Martens, ‘Citizenship’, 223.

85 South Africa, Parliamentary Debates, House of Assembly, 2 February 1927, 33 (William Macintosh).

86 Ibid., 34 (O. R. Nel).

87 South Africa, Parliamentary Debates, House of Assembly, 2 February 1927, 36 (Willem Hendrik Rood); South Africa, Parliamentary Debates, House of Assembly, 2 February 1927, 38 (Tielman Roos).

88 Ibid., 38 (Tielman Roos); South Africa, Parliamentary Debates, House of Assembly, 3 March 1926, 1193 (Tielman Roos); Martens, ‘Citizenship’, 224–225.

89 South Africa, Parliamentary Debates, House of Assembly, 2 February 1927, 38 (Tielman Roos); South Africa, Parliamentary Debates, House of Assembly, 3 March 1926, 1193 (Tielman Roos).

90 South Africa, Parliamentary Debates, House of Assembly, 2 February 1927, 36 and 38 (Willem Hendrik Rood and Tielman Roos).

91 J. Bourke, Rape: A History From 1860 to the Present (London: Virago, 2007), 28–30. See E. Kolsky, ‘“The Body Evidencing the Crime”: Rape on Trial in Colonial India, 1860–1947’, Gender and History, 22, 1 (2010), 109–130.

92 Scully, ‘Rape, Race’, 357.

93 Martens, ‘Citizenship’, 223–241.

94 South Africa, Parliamentary Debates, House of Assembly, 3 March 1926, 1193 (Tielman Roos).

95 Ibid.

96 Ibid., 1195 (Tielman Roos).

97 Cvetkovich, ‘In the Archives of Lesbian Feelings’, 112.

98 Klausen, ‘Do You Call Yourself a White Man?’, 167.

99 NASA, JUS/1/600/23, ‘Convictions under the Union Immorality Act (No. 5 of 1927) during the Year, 1929’; Wits Historical Papers (hereafter WHP), South African Institute of Race Relations (SAIRR), Part 1 Records, AD843B (hereafter AD843B), 24.1-8, ‘Natives Prosecuted and Convicted in the Union, 1933’; WHP, AD843B, 24.1-8, ‘Natives Prosecuted and Convicted in the Union, 1935’.

100 NASA, JUS/1/600/23, ‘House of Assembly’, 9 May 1930.

101 NASA, JUS/1/600/23, ‘Convictions under the Union Immorality Act (No. 5 of 1927) during the Year, 1929’.

102 Martens, ‘Citizenship’, 224.

103 NASA, JUS/1/600/23, ‘Immorality Act, 1927’, 10 March 1931.

104 NASA, JUS/1/600/23, ‘Convictions under the Union Immorality Act (No. 5 of 1927) during the Year, 1929’.

105 NASA, JUS/1/600/23, ‘Offences against Union Immorality Act No. 5 of 1927 during the Year, 1929’.

106 ‘Woman Punished, Man Not Guilty’, Rand Daily Mail, 14 May 1930.

107 NASA, JUS/1/600/23, ‘Rex versus (1) Charles Henry Ford and (2) Evelina Magutulela’, 14 March 1930.

108 Ibid.

109 ‘Injustice of a Conviction: Professor Brookes’s Protest’, Rand Daily Mail, 16 May 1930; ‘Bills Advanced in the Senate: Questions Regarding Immorality Law’, Rand Daily Mail, 20 May 1930; ‘Case against Kroonstad Clergyman: Postponed Indefinitely’, Rand Daily Mail, 18 June 1932; ‘Major Doyle Discharged’, Rand Daily Mail, 17 March 1939.

110 Sibiya’s name is spelt differently across documents, including ‘Grace Sabiya’. For clarity, she will be referred to as Gracie Sibiya.

111 NASA, JUS 4/144/29, R. Kidman, ‘Ordinary Jurisdiction No. 697 of 1928’.

112 NASA, JUS 4/144/29, ‘Copy of Letter Sent to Editors of “Natal Mercury” and “Natal Witness”‘.

113 A. E. B. Dhlodhlo, ‘Section 112(1)(b) of the Criminal Procedure Act – Still Applied Incorrectly in Some Cases’, South African Journal of Criminal Justice, 3, 1 (1990), 70.

114 S. B. Kitchin, ‘Judicial System of South Africa’, University of Pennsylvania Law Review and American Law Register, 62, 6 (1913–1914), 447.

115 Shushu’s name is spelt differently across documents, including ‘Tshutshu’ and ‘Shushu Sebiya’. For clarity, he will be referred to as Shushu Sibiya.

116 NASA, JUS 4/144/29, R. Kidman, ‘Ordinary Jurisdiction No. 697 of 1928’.

117 Ibid.; NASA, JUS 4/144/29, H. P. Slater, ‘Legal “Anomaly” at Richmond’, 2 March 1929.

118 NASA, JUS 4/144/29, ‘Rex vs. G. W. Linfoot and Gracie Sabiya’, 5 March 1929.

119 NASA, JUS 4/144/29, George Linfoot, 19 February 1929.

120 NASA, JUS 4/144/29, R. Kidman, ‘Ordinary Jurisdiction No. 697 of 1928’ (emphasis added by author).

121 NASA, JUS 4/144/29, George Linfoot, 22 February 1929.

122 Morrell, From Boys, 259–260.

123 Gevisser and Cameron, Defiant Desire, 92.

124 NASA, JUS/1/600/23, J. D. M. Rosenow, ‘United Transkeian Territories General Council Session, 1937: Item No. 18: Immorality Act, 1927’, 25 September 1937.

125 Klausen, ‘Do You Call Yourself a White Man?’, 185.

126 ‘Woman Punished, Man Not Guilty’, Rand Daily Mail, 14 Day 1930; ‘Injustice of a Conviction: Professor Brookes’s Protest’, Rand Daily Mail, 16 May 1930; ‘Bills Advanced in the Senate: Questions Regarding Immorality Law’, Rand Daily Mail, 20 May 1930.

127 NASA, JUS/1/600/23, Office of the Attorney-General, ‘Immorality Act, 1927’, 13 February 1931.

128 NASA, JUS 4/144/29, George Linfoot, 19 February 1929.

129 NASA, JUS 4/144/29, Statement by F. G. Page, 18 March 1929.

130 NASA, JUS 4/144/29, George Linfoot, 19 February 1929.

131 NASA, JUS 4/144/29, R. Kidman, ‘Ordinary Jurisdiction No. 697 of 1928’.

132 NASA, JUS/1/600/23, J. D. M. Rosenow, ‘Contraventions of Section 1 and 2 of Act No. 25 [sic] of 1927’, 13 June 1935.

133 NASA, JUS/1/600/23, J. D. M. Rosenow, ‘United Transkeian Territories General Council Session, 1937: Item No. 18: Immorality Act, 1927’, 25 September 1937.

134 South Africa, Parliamentary Debates, House of Assembly, 2 February 1927, 36 (Willem Hendrik Rood); South Africa, Parliamentary Debates, House of Assembly, 2 February 1927, 38 (Tielman Roos).

135 Gqola, Rape, 43.

136 NASA, JUS/1/600/23, ‘United Transkeian Territories General Council: Session 1937’.

137 NASA/JUS/1/600/23, ‘Youth Convicted Under Immorality Act' Sunday Times, 29 November 1946; NASA/JUS/1/600/23, ‘Young European Sentenced for Sexual Offence' Sunday Times, 29 November 1946; NASA/JUS/1/600/23, ‘Making a Travesty of Justice' Natal Witness, 4 December 1946.

138 NASA, JUS/1/600/23, L. P. Msomi, Letter, 9 December 1946.

139 NASA, JUS/1/600/23, 21 December 1946.

140 Martens, ‘Citizenship’, 237.

141 South Africa, Parliamentary Debates, House of Assembly, 3 March 1926, 1194–1195 (Tielman Roos).

142 Martens, ‘Citizenship’, 224.

143 Martens, ‘Citizenship’, 224; South Africa, Parliamentary Debates, House of Assembly, 2 February 1927, 36 (Willem Hendrik Rood); South Africa, Parliamentary Debates, House of Assembly, 2 February 1927, 37 (Willem Hendrik Rood).

144 Koorts, ‘The Black Peril’, 575.

145 C. Ray. ‘Interracial Sex and the Making of Empire', in A. Quayson, and G. Daswani, eds, A Companion to Diaspora and Transnationalism (Hoboken: Blackwell Publishing, 2013) 194.

146 Mamdani, Citizen and Subject, 27.