Female Extramarital Relationships and their Regulation in Early

Female Extramarital Relationships and their Regulation in Early Colonial Thembuland, South Africa: 1875-1895

“Adultery” as a sexual and social drama, and as construction,

appears to have been very much on the agenda of every day

village life in early colonial Thembuland. We owe our

knowledge of this to husbands who allowed their wives’

extramarital sexual escapades to be dissected in the public

domain of magisterial courts in the twilight years of colonial

rule. Their depositions, together with those of their wives, the

alleged lovers and witnesses, reveal women’s agency in

pushing the boundaries of “acceptable” behaviour. Thereby,

they subverted conventional edifices that were constructed to

subordinate them, generally, and effectively regulate their

sexuality, especially.

These testimonies also reveal that the social drama of

extramarital sexual activity typically followed patterns already

firmly established before the impact of the profound social,

economic and political transformations that were wrought on

Southern African societies in the nineteenth century and

beyond.1 They thus enable us to present a picture that 1 For studies that have found that the same social relations that were contested in the

pre-colonial era found their way to colonial courts – albeit the latter reshaping them - see among others, M. Lovett, “On Power and Powerlessness: Marriage and Political Metaphor in Colonial Western Tanzania”, International Journal of African Historical Studies, 27 (1994), pp.273-301; T. McClendon, “Tradition and Domestic Struggle in the Courtroom: Customary Law and the

1

contrasts with that of available studies. It is now taken as an

article of faith in the scholarly literature on migrancy in

Southern Africa that the destabilisation of the African family

was inevitably caused by the onset of labour migration from

rural areas to mushrooming urban labour centres in the last

third of the nineteenth century and beyond. Especially, the

established conventional wisdom is that the absence of males

from their families broke down morality generally, and

especially marriage. It introduced and sustained chronic

domestic conflicts, with rampant extramarital sexual

relationships emerging as one of their most dramatic

manifestations. This occurred because the absence of husbands

from their rural homes relaxed the erstwhile male control of

women’s sexuality, exposing women thus abandoned to the

predatory escapades of other men, and leading to rampant

wifely infidelity.2 These testimonies, however, sound a

Control of Women in Segregation Era Natal”, Ibid., 28 (1995), pp.527-565’ D. Jeater, Marriage Perversion and Power: The Construction of Moral Discourse in Southern Rhodesia, 1894-1930 (Oxford, 1993); That women succeeded in manipulating loopholes and the ambiguities of colonial law in negotiating and contesting pre-colonial social relations that subordinated them is detailed in, among others, J.M. Allman, “Of ‘Spinsters’, ‘Concubines’ and ‘Wicked’ Women: Reflections on Gender and Social Change in Colonial Asante”, Gender and History, 3, 2 (1991), pp.176-189 and M.J. Hay (ed.), African Women and the Law (Boston, 1982).

2 The literature on these processes is vast and well known. Besides several unpublished dissertation, the best known works include P.D. Banghart, “The Effects of Migrant Labour on the Social Structure of the Bantu Homelands”, in Migrant Labour and Church Involvement (Umpumulo: Missiological Institute, 1970); F. Wilson, “Let No Man Put Adunder”, South African Outlook, January 1964, reprinted in F. Wilson & D. Perrot (eds.), Outlook of a Century (Lovedale, 1973); L. Clarke & J. Ngobese, Women Without Men (Durban, 1975); E. Gordon, The Women Left Behind: A Study of the

2

cautionary note - that the new forces that impinged on African

communities in the later part of the nineteenth century and

beyond, especially labour migration, did not cause these

tensions exclusively, even if they did undoubtedly re-shape

them. Rather, family tensions, especially their manifestation in

rampant wifely infidelity, were rooted in contradictions

inherent in the changing gender relations of power within

African communities themselves. The agents of these changes

included the advent of commercial capitalism, European

Christian evangelization, colonial rule and the genesis and

consolidation of labour migrancy.3

Wives of Migrant Workers of Lesotho (Geneva, 1978); P. & I. Mayer, Townsmen or Tribesmen (Cape Town, 1974); relevant chapters in P. Mayer, Black Villages in an Industrial Society: Anthropological Perspectives on Labour Migration in South Africa (Cape Town, 1980); B.A. Pauw, The Second Generation: A Study of the Family among Urbanized Bantu in East London (Cape Town, 1963); W. and M. Pick & C. Obermeyer, “Urbanization, Household Composition and the Reproductive Health of Women in a South African City”, Social Science and Medicine, 43, 10 (1996), 1431ff.; G. Wilson, An Essay on the Economics of Detribalization in Northern Rhodesia, Rhodes-Livingston Papers, Part 1, no. 5, 1941 and Part 2, no. 6, 1942; I. Schapera, Migrant Labour and Tribal Life: A Study of Conditions in the Bechuanaland Protectorate (London, 1947; D. H. Houghton & E. Walton, The Economy of a Native Reserve (Pietermaritzburg, 1952; W. Watson, Tribal Cohesion in a Money Economy (Manchester, 1958); F. Wilson, Migrant Labour in South Africa (Johannesburg);; M. Wilson, Reaction to Conquest (London, 1961).

3 Although it is not the intention of the present article, it does, however, implicitly challenge the This view has recently been criticized for its ahistorical perspective and its failure to take a longer view of social processes among African societies in Southern Africa before the onset of industrialization. Among the most note-worthy critics, see (Jochelson 1995: 323-333; O’Laughlin 1998: 1-48).Bearing a few notable exceptions (Beinart ; Guy 1987: 18-37; Guy 1990: 33-47; Jacobs 1999: 347-374; Kinsman 1983: 39-54; Wright 1981). Scholarship on African societies in South Africa has focused mainly on the impact of changes brought on by colonial incorporation and industrialization. This contrasts with the scholarship elsewhere in Africa. Here, scholars have long recognized that the African pre-colonial past was by no means harmonious. They have also presented a complex picture of changing gender relations in the millennia preceding nineteenth century colonial encounters. The period immediately preceding colonial rule was itself a profoundly transformatory one, with gender relations being re-shaped by such factors as the transition from slavery to legitimate commerce, state formation, missionization and

3

This article explores these patterns. It contends that

Thembu men, their local, and later the colonial, state seemingly

attempted with dubious success to control women’s

extramarital sexual dalliance. It suggests diverse reasons for

this manifest deficiency. They comprise mainly the Thembu

general notion of justice as “restorative”, and, consequently,

the way they constructed “adultery” and its punishment. Other

pertinent factors entered into the equation of stifling men’s

efforts to restrain women’s sexuality. They comprised several

layers of the contradictions inherent in the edifice of the social

and gender relations of the time.

commoditization and the early onset of migratory labour. For some of the notable studies on these processes, see E.A. Alpers, “State, Merchant Capital and Gender Relations in Southern Mozambique to the end of the Nineteenth century: Some Tentative Hypothesis, African Economic History, 13 (1984), pp.23-55; W. Beinart, “Production and the Material Basis of Chieftainship: Pondoland c.1830-80, in Marks and Atmore,, Economy D.N. Beach, The Shona and Zimbabwe 900-1850 (London, 1980); P. Caplan, “Gender, Ideology and Modes of Production on the Coast of east Africa”, Paideuma, 28 (1982), pp.29-43 P. Ciancanelli, “Exchange, Reproduction and Sex Subordination Among the Kikuyu of East Africa”, ROAPE, 12, 2 (1980); pp.25-36. C.M. Clarke, “Land and Food, Women and Power in Nineteenth Century Kikuyu”, Africa, 50, 4 (1980), pp. 357-369; D. Crummey, “Wmen, Property and Litigation Among the Bagemder Amhara, 1750s to 1850s”, in M. Hay and M. Wright, African Women (1982); J. Guy, “Gender Oppression in Southern African Pre-capitalist Societies”, in C. Walker (ed.), Women and Gender in Southern Africa to 1945 (Bloomington, 1990); pp.33-47; Guy, “Analysing Pre-Capitalist societies in Southern Africa”, Journal of Southern African Studies, 14, 1 (1987), pp.18-37; P. Harries, “Kinship, Ideology and the Nature of Pre-Colonial Labour Migration”, in S. Marks & R. Rathbone, Industrialisation and Social Change in South Africa (New York, 1982), pp.142-166; M. Kinsman, “‘Beasts of Burden’: The Subordination of Southern Women, ca 1800-1840”, Journal of Southern African Studies, 10. 1 (1983), pp.39-54; E. Mandala, “Capitalism, Kinship and Gender in the Lower Tchiri (Shire) Valley of Malawi, 1860-1960: An Alternative Theoretical Framework”, African Economic History, 13 (1984), pp.137-169; M. Mbilinyi, “Wife, Slave and Subject of the King: The Oppression of Women in the Shambala Kingdom”, Tanzania Notes and records, 88/89 (1982); C. Robertson & M, Klein (eds.), Women and Slavery in Africa (Madison, 1983), J. Wright, “Control of Women’s Labour in the Zulu Kingdom”, in J. Peires (ed..), Before and After Shaka (Grahamstown, 1981).

4

Undoubtedly, our sources are fragile and contestable. We

should undoubtedly handle them with utmost vigilance. They

face us with problems that are inherent in such testimonies.

Court cases are almost by definitions unusual ones. Great

prudence must bear on inherent difficulties in interpreting

events, especially sexual and marital ones that were recreated

for the court, especially a colonial court. Furthermore, we need

to be for ever aware that we are listening to voices of people

who had every reason and opportunity to tell the opposite of

the truth, or to distort it.4

We also face manifold problems that are inherent in

reading oral testimony that was reduced to text. They include

limitations of oral testimony that other researchers have noted.5

Others relate to problems of translation and what, and how

much, was lost in the process. Newly introduced and unfamiliar

codes and conventions also shaped testimony. A scholar with

extensive experience in interrogating colonial court testimonies 4 This problem is partly ameliorated by the fact that in most of these cases, the plaintiff or the

defendant, or both, were represented by legal practitioners, versed in the skill of cross-examination. As one attorney stated, albeit stereotypically, “natives do not understand cross-examination. In a native case pure and simple, it is the side which tells the biggest lies that wins…and it is only legal practitioners experienced with Natives who are really able to sift the truth by cross examination…This is almost the only way.” Report of the South African Native Affairs Commission ,1903-5 (SANAC), Cape Town, 105, vol. 2, evidence of Colonel S. St. John Henley, #13,920.

5 See, among others A. Seldom & J. Pappworth, By Word of Mouth: ‘Elite’ Oral History (London, 1983); P. Thompson, The Voice of the Past: Oral History (Oxford,

5

does admit that they “do indeed contain African voices”.

However, he warns “these voices speak in ways which have been

profoundly shaped by the procedures of the court and by the

circumstances surrounding the transformation of testimony into

text” (Roberts 1990: 450).6

Certainly, then, the court records used for this study do

have severe limitations. This, however, should not deter us. We

should forever be circumspect of their hidden meanings, their

silences and the extent to which they were shaped by the

peculiar circumstances and conventions of the arena in which

they were produced. Simultaneously, we should continue to find

useful ways of decoding and deconstructing their socio-legal

context.7 These are rich and unique sources. 6 Such problems exist even in situations where the court is not foreign “Language”, observes

Jordanova generally, “is not transparent but opaque; and that to see through, or rather into it, is thus an act of interpretation. L. Jordanova, “The Interpretation of Nature: A Review of Keith Thomas’ Man and the Natural World”, in Comparative Studies in Society and History, 29, 1 (1987), p.196; And, underscoring the fact that the language of litigants and their witnesses were “not shaped freely by their authors”, Roper observes that “the language men and women use in criminal trials is clearly forced discourse”, and that court records are “the constructed record of a conversation where the differences of power are highly visible, and the distance of the record from ‘memory’ cannot be overlooked”, L. Roper,” Will and Honour sex, Words and Power in Augsburg Criminal Trials”, Radical History Review, 43 (1989), 46 and 47.; For a useful recreation of a magistrate’s court, albeit a modern one, see (Moeketsi 1999: 30-38)

7 For the most recent and fascinating attempts that turn these limitations of court records to advantage, see relevant articles in the special issue of African Economic History, 25, 1997; Earlier works that have used court records include M. Chanock, “Making Customary Law: Men, Women and Courts in Colonial Northern Rhodesia”, in M. Hay & M. Wright (eds.), African Women and the Law: Historical Perspectives (Boston, 1982); Chanock, Law, Custom and Social Order: The Colonial Experience in Malawi and Zambia (Cambridge, 1985); (Chanock 1985; Chanock 1989; Dickerman 1984, 69-81; Hay and Wright (eds), 1982; Moore 1986, and the relevant articles in Mann and Roberts 1991). In western historiography, the use of court cases has become an academic growing industry despite the ongoing controversy over their reliability. For a few of the many studies on sexual and gender contestations in court, seeL. Abrams, “Whores, Whore Chasers,

6

“Adultery” cases deal with critical, yet still under-

researched themes in African and Southern African gender

scholarship – how men and women enacted and constructed

their sexuality.8 They also provide historians with an

extraordinary opportunity to study many details of the lives and

and Swine: The Regulation of Sexuality and the restoration of Order in the Nineteenth Century German Divorce Court”, Journal of Family History, 21, 3 (1996), pp.267-281; J.M. Beattie, Crime and the Courts in England, 1660-1800 (Oxford, 1986); J.M. Donovan, “Justice and Sexuality in Victorian Marseille, 1825-1885”, Journal of Social History (Winter 1987), pp.229-262; L. Gowing, Domestic Dangers: Women, Words and Sex in Early Modern London (Oxford, 1996); M. van der Heijden, “Women as Victims of Sexual and Domestic Violence in Seventeenth Century Holland: Criminal Cases of Rape, Incest, and Maltreatment in Rotterdam and Delft”, Journal of Social History (Spring, 2000) CHECK PAGE; M. Ingram, Church Courts, Sex and Marriage in England, 1570-1640 (Cambrdige, 1987); J. Kermode & G. Walker, Women, Crime and the Courts in Early Modern England (London, 1994); R. Kingdom, Adultery and Divorce in Calvin’s Geneva (Cambridge, 1995); C. Lansing, “Gender and Civil Authority: Sexual Control in a Medieval Italian Town”, Journal of Social History, 31, 1 (1997), pp.33-60; M.B. Norton, “Gender and Defamation in Seventeenth Century Maryland”, William and Mary Quarterly, Xliv, I (January 1987), pp.3-39; L.R. Poos, “Sex, Lies and the Chruch Courts of Pre-Reformation England”, Journal of Interdisciplinary History, xxv, 4 (Spring 1995), pp.585-607; Roper, “Will and Honour”; Relevant articles in C. Smart (ed.), Regulating Womanhood: Historical Essays on Marriage, Motherhood and Sexuality (London, 1992); L. Stone, Uncertain Unions and Broken Lives (Oxford, 1995); J. Sundin, “Sinful Sex: Legal Prosecution of Extra-marital Sex in Pre-industrial Sweden”, Social Science History, 16, 1 (Spring 1992), pp.99TO

8 It is true that almost every anthropological monograph produced on Africa in the last half of the twentieth century has something to say about indigenous patterns of sexual behaviour. Yet, anthropologists and ethnographers only mentioned sexuality to the extent that it had a bearing on kinship and descent, fertility beliefs and practices and initiation rites. For a survey of general anthropological literature on sex and sexuality, see (Manderson, Bennett and Sheldrake 1999: 184-210); For a critique of anthropological study of African sexuality, see the useful work of N. Nelson, “”Selling her Kiosk”: Kikuyu Notions of Sexuality and Sex for Sale in Mathare Valley, Kenya”, in P. Caplan (ed.), The Cultural Construction of Sexuality (London & New York, 1987), pp. 217-39; Only recently has the overwhelming threat of AIDS focused scholarly attention on African sexual behaviour; For a lively debate on African sexual behaviour within the context of AIDS, see, J.C. & P. Caldwell “The Social Context of AIDS in Sub-Saharan Africa”, Polulation and Development Review, 15 (1989), pp. 185-234; M-N Le Blanc, D. Meintel, & W. Pich, “The African Sexual System: Comments on Caldwell et.al.”, Ibid., 17, 3 (1991), pp. 497-505; J.C. & P. Caldwell and P. Quiggin, “The African Sexual System: Reply to le-Blanc et. al.”, Ibid., 17. (1991), pp. 506-515; B. Ahlberg, “Is there a distinct African Sexuality? A Critical Response to Caldwell et.al.” Africa, 64 (1994), pp. 220-42; See also the important work compiled in P.W. Setel, M. Lewis & M. Lyons (eds.), Histories of Sexually Transmitted Diseases and HIV/AIDS in Sub-Saharan Africa (Westport, 1999); Work on homosexuality is also still in its infancy, for a review of the lacuna and of existing literature, see A. du Plessis, “Searching in an ‘Empty

7

values of the ordinary, illiterate folk who composed the bulk of

the population. They offer a rare opportunity to explore the

ways in which ordinary men and women constructed,

negotiated, contested and narrated intimate, intractable and

often paradoxical dimensions of their lives – sex, sexuality and

changing gender and power relations.

Most important, certainly, here, in these documents, the

historian hears the voices, albeit ambiguous and anguished, of

a normally silent and powerless section of the community –

women - especially married women . The setting – under the

limelight of man’s court and a colonial one to boot, renders

these conversations even more important. So is the content of

the stories and the concerns these testimonies reveal. What we

can see, and can present here, is a pattern of behaviour, of

actions that obeyed logic, perhaps more latent than explicit

Closet’? A History of Homosexuality in South Africa”, Historia, 1 (May 1997), pp. 116-129; also papers presented at the First South African Gay and Lesbian Studies Colloquium, University of Cape Town, 19-21 October 1995; On prostitution, see E. Akyeampong,, “Sexuality and Prostitution among the Akan of the Gold Coast c. 1650-1950”, Past and Present, 156 (August 1997), 144-173; Bonner 1990: 221-250; Bozzoli 1991: 139-171; Hay 1988: 431-447; White 1990; On adultery in the past, see the useful work of T. McCaskie, “State and Society, Marriage and Adultery: Some Considerations towards a Social History in Pre-colonial Asante”, Journal of African History, 22 (1988), pp. 488-94 (CHECK)

8

The article focuses on the Umtata district9 of Thebuland in

colonial Transkei.10 In exploring consistent patterns, however,

it has drawn on evidence from other districts. The period

covered is the last third of the nineteenth century. During this

period, the colonial state was still constructing its landscape,

the colonized aBaThembu negotiating and contesting its rule.

Its impact was still fragile, though gradually intensifying.11 9 The Umtata district was part of the larger colonial territory of Thembuland. It was the seat of

colonial government. There is no special reason for selecting the Umtata district for this study, excepting the methodological convenience of localising the study and giving it the requisite focus. Moreover, the Umtata district, like all colonial districts, was created by the colonial regime, without much attention to the heterogeneity of its communities. Indeed, if homogeneity had ever been the norm in the pre-colonial era, colonial policy and action deliberately subverted it. An essential strategy of the colonial administration to control colonized African communities was to “destabilize” them by creating heterogeneous communities. This, it was believed, would frustrate common purpose and pre-empt anti-colonial mobilization. According to this policy, the Umtata district was reconfigured into a motley population consisting of the dominant Thembu, including Xhosa and Mfengu (Hammond-Tooke 1955; Jackson 1975; Archives of the Chief Magistrate of the Transkei (hereafter, CMT) 1/128, chief magistrate (hereafter, CM) to under-secretary for native affairs (hereafter, USNA), 8 June 1881; Archives of the Native Affairs Department (NA), Cape Town, NA 65, CM to secretary for native affairs (hereafter, SNA), 15 November 1880; CMT 1/145, minutes of meeting held on 27 September 1878).

10 Thembuland was a sub-region of the Transkeian Territories, stretching from the Umthatha to Mbashe Rivers. It was inhabited predominantly by the Thembus. “Thebuland Proper” comprised of the districts of Umtata, Mqanduli, Engcobo and Elliotdale, while “Immigrant Thebuland” comprised of the districts of Cofimvaba, Lady Free and Xhalanga. The Transkei region of the Eastern Cape in South Africa stretches from the Nciba (Kei) River to the Mzimkhulu River along the Indian Ocean and extending inland to an area of low mountains centring on the Drakensberg Mountains. It was a colonial creation, inhabited predominantly by Southern Nguni speaking people, among whom the Xhosa, the Thembu, the Mpondomise, the Mpondo, the Mfengu, the Bomvana, the Bhele, the Hlubi and the Bhaca. Collectively, these communities called themselves aMaXhosas. The Cape Colony created this region when it extended its eastern boundary to the Kei River in 1838, and then fixed the territorial limits of the region. For the early history of the aMaXhosa and the ethnic composition of the Transkei, see J.B. Peires, The House of Phalo: A History of the Xhosa People in the days of their Independence (Johannesburg, YEAR); P. Maylam, A History of the African People of South Africa: From the Early Iron Age to the 1970s (Cape Town, 1986); A.O. Jackson, The Ethnic Composition of the Ciskei and Transkei: Ethnological Publications, no 53 (Pretoria, 1975);

11 Although the colonising presence increasingly made itself felt from as far back as the 1700s, it was only from 1876 that the Cape Colony began annexing much of the Transkei in successive stages. Even after this date, the colonial government maintained a skeletal administration in the region. Probably only in the 1890s did the colonial administration begin to have a grip on the Transkeian communities. Colonial Office Archives (C.O), Public Record Office, London, C.O, 5831, Proclamation 29 December 1836; Cape of Good Hope Government Gazette, No. 2426, 27 May 1852; No. 2911, 10 March 1858; No. 2627, 21 October 1864; Blue Book for Native Affairs (B.B.N.A.), G.39-’76, Bowker to Under Colonial

9

It is, therefore, the moment of the twilight of colonialism,

though certainly not the onset of social change. That process

had proceeded apace for centuries, though measuring its

precise extent and ingredients has still eluded analytical

precision. Behind the long history of the aBaThembu that

spanned probably over six centuries and even longer, lies the

inescapable pattern of adaptation, incorporation and change

(Cronin 1982: 38-39; Derricourt 1974; Prins and Grander 1993;

Theal 1910; Wilson 1959; Wilson and Thompson 1969: 78-87).

Through these centuries, these Southern Nguni speaking

peoples were engaged in profound, sometimes violent, cultural,

economic, political, and religious encounters. They had been

interacting with themselves, other Bantu-speaking peoples, the

Khoi-San who inhabited the region they expanded into, and

Europeans. The latter included traders, European military

advisers and soldiers. Later came missionaries, colonists and

politicians (Brownlee 1896; Brownlee 1923; Brownlee 1975;

Crais 1992; Erlank 1999: 1-19; Harinck 1969; Hogson 1982;

Hosgson. 1984; Kallaway 1982: 143-160; Lewis 1984;

Louw1986;; Mills 1975; Monstert 1992; Peires 1981; Peires Secretary, 29 October 1875, 11; Ibid. G.39-’76, Special Commission on Tembookieland, 33, G.16-76, SNA, memorandum on Transkei, April 1876, 103; G.12-’77, annual report, Tembuland Proper, 78, 82; Cape of Good Hope Government Gazette, No. 5950, 16 September 1879; No. 6642, 1 September 1885; Saunders 1976.

10

1989; Prins 1992; Saunders 1978; Wagenaar 1988; Williams

1959). These encounters had produced continual shifts in

institutions and practices affecting gender and domestic

relations.

So, we hardly stand to benefit much from pursuing the

elusive pristine and fossilized “traditional” baseline to the

social, especially domestic, relations in these communities. The

vagaries of history had coalesced to force political leaders and

their subjects, colonists and the colonized, local communities

and agents of change, husbands and wives, to negotiate their

relationships in a malleable and constantly innovative form.

This was itself influenced by specific, but changing, negotiated

and contested, cultural, ecological, economic and political

factors.

Below the veneer of gradual and hesitant social change in

the several villages scattered across the landscape of the

Umtata district, however, lay the essentials of a peasant,

“patriarchal”, parochial and public life. The Thembu were still

essentially a peasant, rural society, despite the advance of

capitalism. The dominant productive activity continued to be

agro-pastoralism. Allotment to agricultural land and ownership

11

of stock, especially cattle, defined economic and social viability

of the individual, family, village and the state. They were a

highly patriarchal society that ideally vested enormous power

in the hands of households’ heads, including the authority to

dispose of sons and daughters in marriage. Everyday life was

essentially parochial, organised along village line. It was also

public - everything was out in the open and privacy was a rare

privilege.

The right to land and any other form of property was a

male privilege, and a right that every male could claim. But

because marriage was the absolute precondition of social

maturity, only when he married did a male receive his

allotment. The result was that marriage was nearly universal.

It was also early, with women marrying at the average age of

between 16 and 18.12 A man married to establish an umzi

(homestead) – the basic productive unit. His bride left her natal

home and relocated to her husband’s home village to form with

him a new homestead. There, she added a worker, whose

domestic and agricultural labour served to enhance her

husband’s and his kin’s resources. A wife was therefore a

12 1UTA/5/1/1/6.

12

critical asset in her husband’s homestead’s productive activity

and were a crucial economic resource.

Even more important, marriage transferred the fertility of

the woman to the man’s kin.13 Wives bore, and cared for,

children, and this offspring belonged to the man’s kin. Her

fertility produced labour power and reproduced it through

reproductive capacity. Through their procreative capacity,

wives ensured lineage and social continuity. They also had an

important exchange value - they formed and cemented

alliances between households, clans and nations.

Thus, within the gendered14 constructs that pervaded

every aspect of the society, marriage occupied a preponderant

place. Marriage was at the heart of social relations of class,

gender and generation that structured Thembu society.15.

13 Despite profound transformations that have affected African marriage systems, the centrality of fertility has persisted to modern times. For the dynamic of these transformations, see, among the most noteworthy, (Gluckman 1955; Krige 1936; Mair 1953; Marris 1962); For the persistent value of fertility in African marriages, see (Fortes 1978: 128-48; Geschiere and Gugler1998: 309-19; Lesthaeghe (ed) 1989).

14 The article views gender as a whole, neither in binary opposition of “woman” and “man” nor viewing women solely as victims of patriarchal oppression, but seeing both women and men as implicated as the subjects of gendered constructs and recognising men and masculinity, as well as how gender signifies power relationships. For this view of gender, see especially J.W. Scott, Gender and the Politics of History (New York, 1988); and the introduction along with N. Cott’s essay, “Men’s History and Women’s History”, in M.C. Carnes and C. Griffen (eds.), Meanings for Manhood Construction of Masculinity in Victorian America (Chicago, 1990), pp.1-7, 205-11. The article also recognizes that gender constructs are not static but change over time. For our period and region, especially, this must have been the pre-eminent pattern. Gender roles distinctions must have sharpened in the course of history.

15 Despite the existence of early accounts detailing the construction of gender, class and generational identities and the operation of gender relations among Xhosa communities, the history of gender relations in the pre-colonial period is still an underdeveloped theme; For a passionate call to fill this lacuna, see H. Bradford, “Women, Gender and Colonialism: Rethinking the History of the British

13

Examining the gendered politics and economics of gendered

African marriages, and the origins of women subordination,

Guy (1987: 21) has identified the “continuous acquisition,

creation, control and appropriation of labour power” as the

“dynamic social principle upon which Southern African pre-

capitalist societies were founded.” He continues to stress that

“this labour power was realized by men, through the exchange

of cattle for the production and reproductive capacities of

women.” 16

Cape Colony and its Frontier Zones, c.1806-70", Journal of African History, 37 (1996), pp.351-370; H.Bradford, "Peasants, Historians, and Gender: A South African Case Study Revisited, 1850-1886", History and Theory, 39, 4 (2000), 86-111; For two notable early descriptions of gender construction and gender relations among the Xhosa, see M. Wilson, “The Early History of the Transkei and Ciskei”, African Studies, 18, 4 (1959), quoting reports from survivors of Portuguese shipwrecks along the coast of Xhosaland in the early seventeenth century, pp. 167-179; L Alberti, Ludwig Alberti’s Account of the Tribal Life and Customs of the Xhosa in 1807 (trans. By W. Fehr) (Cape Town, 1968); A pioneering, albeit theoretical and exploratory, attempt at theorising the construction of gender relations in South Africa generally in this period, see Guy, “Gender Oppression”; Guy, “Analysing Pre-Capitalist societies”. Despite this lacuna, this essay cannot shoulder the burden of tracing the historical development of these gender relations. It can only here sketch out the essential ingredients of these relations and the driving forces behind them; For a work that stands out for its sustained analysis of gender relations among the Xhosa people in modern times, but with resonance in the pre-colonial period, see A.K. Mager, Gender and the Making of a South African Bantustan: A Social History of the Ciskei, 1945-1959 (Oxford, 1999); Also dealing with a later period, see M.P. Mandela, “Gender Relations and Patriarchy in South Africa’s Transkei”, unpublished PhD thesis, University of Massachusetts (1993); For an earlier work that deals extensively with gender relations especially as they affected sexuality among the Xhosa in the first third of the twentieth-century, see B.J.F. Laubscher, Sex, Custom and Psychopathology: A Study of South African Pagan Natives (New York, 1938)

16 Guy explicitly follows Claude Meillassoux who argues that in agriculturally self-sustaining societies, men needed to control the natural randomness of fertility and mortality. They achieved this through subordinating women through regulating marriages, C. Meillassoux, “The Economic Bases of Demographic Reproduction: From the Domestic Mode of Production to Wage Earning”, Journal of Peasant Studies, 11, I (1983), p.51; also Meillassoux, “The Social Organization of the Peasantry: The economic Basis of Kinship”, Ibid., I (1973-4), pp.81-90. Indeed, there is a vast array of literature that has placed women’s fertility at the root of women’s subordination. A sample includes (Engels 1972; Fox 1967; Gaulin 1980: 301-309; Ginsburg and Rapp 1991: 311-343; Harris and Young 1981: 109-147; Levi-Straus 1969; Mukhopadhyay and Higgins 1988: 461-495; Rubin 1975: 157-210; Yanagisako and Collier 1987: 14-50).

14

Guy may have overestimated the importance of labour

power and control over it in production.17 Nevertheless, it was

certainly one of several considerations in Thembu ideology of

marriage, and the social relations associated with it. Marriage

transferred the fertility of the woman to the man’s kin.18 The

fertility of the woman produced labour power and reproduced

it through reproductive capacity. A man married a woman to

establish an umzi (homestead) – the basic productive and

reproductive unit. She left her natal home and relocated to her

husband’s village. A wife was therefore a critical asset in her

husband’s homestead’s productive and reproductive activity.

Wives’ productive and reproductive capacity made them a

social and economic resource. They were primarily responsible

for the economic, social and political reproduction of the

household.

For these reasons, the man’s kin acquired this crucial

resource through exchanging it for the most important asset in

this society – cattle. This exchange was called ukulobola 19. 17 For a sustained criticism of Guy’s argument, and the characterization of pre-colonial African

women as “beasts of Burden” (Kinsman 1983: 39-54), see (Berger 1994; Jacobs 1999: 347-374)..18 Despite profound transformations that have affected African marriage systems, the centrality

of fertility has persisted to modern times. For the dynamic of these transformations, see, among the most noteworthy, (Gluckman 1955; Krige 1936; Mair 1953; Marris 1962); For the persistent value of fertility in African marriages, see (Fortes 1978: 128-48; Geschiere and Gugler1998: 309-19; Lesthaeghe (ed) 1989).

19 Detailed information on ukulobola is contained in Native Laws; Alberti 1968,:59-70; Hammond-Tooke 1962: 47-50, 32-7, 302-8; Soga 1931: 263-85; Wilson 1961:30, 32, 122-9, 190-3, 212-

15

Cattle anchored, sustained and reproduced Thembu gendered

and hegemonic constructs.20 Their ownership and control

determined hegemonic and subordinate genders and

masculinities21 They were at the heart of the central role of

gender in shaping divisions of labour, and the differential

status this imposed between the sexes. While men

concentrated on the less labour-demanding, but prestigious,

pastoral labour, women participated in the branch of

production that consumed more human effort, but was less

estimable – cultivation (Boserup 1965; Boserup 1970; Bryleson

1995).Cattle-ownership, management of the factors that

produced and reproduced these animals, and the control and

regulation of activities related to this resource were the

3; and generally on Xhosa marriage, see Wilson 1981: 133-147).20 Early European observers consistently marvelled at the centrality of cattle in the economic,

political, religious and social lives of the AmaXhosa. These animals were the alpha and the omega of life. They provided the main means of food, clothing, ferilizer. fuel and tractive power. They were used in ceremonial occasions, themselves closely associated with productive activity and the psychological well-being of the community. They served as a medium of exchange, defined and sustained political and social status and established and perpetuated lineages. Above all, they produced and reproduced labour power and society itself in their role as a medium of acquiring wives (Alberti 1968,: 22-23, 54-56, 64; Alexander 1837: 385; Brown 1855: 97-8; Wilson 1959: 169-172).

21 ?For a classic and persuasive analysis of masculinities, including an extensive review of the literature, see R.W. Connell, Masculinities (Cambridge, 1994); On the construction and expression of masculine and gender identities specifically in Southern African, see the “special issue on masculinities in Southern Africa”, Journal of Southern African Studies, 24, 4 (1998), especially the introductory essay by R. Morrell, “Of Boys and Men: Masculinity and Gender in Southern African Studies”, 605-630; On the salient caution that women in African societies were not subordinated as one universal gender, but that there was significant stratification even within this gender category, see, S. Hanretta, “Women, Marginality and the Zulu State: Women’s Institutions and Power in the Early Nineteenth Century”, Journal of African History, 39, 3 (1998), 389-416.

16

preserves of males, generally, and of older, and already

married, males especially.

Girls and boys were socialized into their respective roles

in this gendered division of labour. Early in the nineteenth

century, a European traveler observed how girls were

“retained to collect the necessary water and wood for the

household” under their mother’s guidance, while the latter

“must tend the calves”. He also described how the passage of

females from small girls to marriageable women was marked

by biological and sexual changes, especially their reproductive

capacity. For males, however, the passage from small boys to

young men emphasized social duties, responsibilities and

authority over younger boys and girls (Alberti 1968: 29-36, 38-

42, 59-62).

Women were strictly excluded from cattle-ownership and

from cattle-related activities, despite their crucial contribution

to the production and reproduction of cattle wealth. Unmarried

men, in their turn, contributed significantly towards the

requisite labour for the production of cattle and the

management of the pastoral economy. This asset, nevertheless,

remained the property of the homestead head. Even after

17

fathers had passed their productive years, their sons had

limited access to their herds, if at all. Only at the death of his

father could a son gain any significant access to cattle. Yet

even then, considerations of seniority within the patrilineage

ensured that the deceased’s brothers, uncles and widows had

prior claim to the estate. Thus, the ownership of cattle, indeed

of all property, was gendered and masculinized.

Those who possessed cattle – the male elders of the

would-be bridegroom – and controlled fertility – the male elders

of the would-be bride – controlled marriages. The former

mediated graduation to adulthood through circumcision of

young boys. They decided when the latter had reached

independence and ready to marry. The elders contributed the

requisite lobola for the marriage of young men. Further, they

granted them land from which to produce for the newly formed

homestead. They also aided them in constructing their separate

huts. Indeed, you could be married, but you were not

recognized as a man if you had not be allotted land, and your

married status was not recognized.

18

Similarly, the girls’ male elders mediated their graduation

to adulthood. They controlled their sexuality and disposed of

them in marriage. Girls’ male elders also decided when they

would marry, to whom and at what value of lobola.

Ideally, rich cattle-owners could also marry many wives.

Their ownership of large herds of cattle enabled them to

accumulate, or control the acquisition of, the crucial fertility of

women. It also enabled them to accumulate and sustain

political power and social status. European reports in the early

nineteenth century consistently associated polygyny with male

resources, especially with wealthy chiefs (Alberti 1968: 68).

Clearly, these sex and gender roles were neither natural

nor cosmetic. Rather, they were socially constructed and

intimately involved in gendered relations of power (Caplan

(ed.) 1989; Foucault 1980: 92-100; Harvey and Gow 1994;

Mendus and Rendal (eds.) 1989; Parker and Gagmon (eds.)

1994; Parpart 1988; Stolcke 1981: 30-48; Stoler 1991: 514-

51).22 The state was intimately involved in the gendering of the

young. The gendering of boys was tightly tied to male power

through their fathers and other men, but most importantly

22 For the same literature for Africa, see, among others (Barnes 1992; Chanock 1985; and the 1996 special issue of Canadian Journal of African Studies, 30, 1.

19

through state power. Boys’ circumcision, marking the rite of

passage to manhood, was an exclusively male affair, with state

participation as a central element. An age group of boys was

usually circumcised with the chief’s son, the state playing a

prominent role (Alberti 1968: 39)

Even after the completion of the rite, boys remained

temporarily under the service of the chief for further

indoctrination and training in masculine traits. This prominent

role of the state at this crucial stage of gendering boys fulfilled

four essential functions: It ensured the maintenance of the

patriarchal family from the chief through the boy’s father to the

boy; it reinforced loyalty of the boy’s father to his chief. It also

consolidated power relations between the boy and his father’s

chief. Finally, it reproduced masculine and power bonds among

the boys of the same age–group who underwent circumcision

together. This perpetuated gender, generational, and therefore

power relations in the new generation.

The state also played an equally key role in the gendering

of girls. Between initiation and marriage, girls also sojourned

at the chief’s capital where gendered power was most visible

and intensely encountered. Here, before the newly circumcised

20

boys, the wives of the chief tutored the girls in gendered roles

of femininity (Alberti 1968: 42). The state also intervened in

marriage arrangements and wedding ceremonies. Perhaps the

only occasion when a woman was allowed to enter the cattle

enclosure was when she had to appear before the chief soon

after her marriage. On this occasion, the chief reinforced the

gendered roles expected of her, admonishing her to “look after

the household of her husband with diligence and energy, in

particular to pay assiduous attention to agriculture and in

general to deport herself as a good housewife, so that no

complaints can be lodged against her.”

Class relations relating to the production and circulation

of cattle within the homestead were reproduced at the level of

the state. The ruling elite, the judiciary and the state

functionaries drew its membership from men-with-means.

They derived their authority as custodians of custom and as

lawmakers because they dominated the entire base of the

economy, especially the ownership and distribution of cattle.

They also managed the factors that produced this resource.

Thus, homestead heads generated laws and customs that

mainly reproduced their class, consolidated their dominance

21

over the productive process and productive relations, and

reinforced and perpetuated their social and political status.

Because women’s productive and reproductive capacity

were critical to marriage, access to their sexuality ideally had

to be controlled – at least regulated.23 Seemingly, however,

controlling the sexuality of Thembu married women strictly

was elusive The least we might say is that husbands’ success in

controlling their wives’ sexuality was more limited than they

would have preferred.

The most elaborate, and perhaps the most successful,

efforts to control access to women’s fertility were enacted in

efforts to maintain prenuptial virginity. The virginity of an

unmarried girl was highly valued. So, prenuptial sexuality24

was regulated. We might imagine a continuum of prenuptial

sexual control. Bounding it on the one extreme was a strict

regime that prohibited any form of pre-marital sexual play and 23 The Thembu, like other Bantu-speakers in the region, stressed the fertility of the woman

more than her sexuality. See (Guy 1990).24 I enlist the distinction that has been made in theoretical and historical scholarship between

sex and sexuality. Sex is a physical act, while sexuality is the conceptual apparatus that men and women use to give meaning and value to sexual attraction and its enactment In having sex, people interpret their behaviour in terms of their own and their culture’s attitudes toward sex. Sexual acts are thus always “scripted”. Sex acquires meaning only as a function of political, economic, social, and religious ideologies. On this distinction and the “scripting” of sexual acts, see (Foucault 1988; Caplan (ed) 1989; Gagnon and Simon 1973: 1-26; Gagmon and Simon 1984: 53-60; Parker and Gagmon 1995; Paker, Barborosa and Aggleton (eds) 2000); The historical literature on the relationship between cultural constructs and sexual attraction has largely been restricted to studies of western homosexuality and lesbianism; For this, see, among others (Sprague 1984: 29-43; Introduction in Duberman, Vicinus Chauncey, Jr. (eds) 1989); Padgug and Smith 1991); For the complex debate that has been launched by this perspective, see (Stein (ed) 1990).

22

severely punished transgressions. On the other extreme was a

permissive regime of sexual abandon and licentiousness.25

Even when attempting to control adolescent sexuality, the

Thembu regime of permissible prenuptial sexual play

seemingly lay at mid-point on this scale. The aim was not

sexual repression but sexual restraint. Adolescent boys and

girls courted freely. Adolescent sexuality was very much on the

agenda.26 This society permitted prenuptial sexual play. –It

indeed encouraged it. Still, it instituted a variety of effective

controls. The strategy was to balance sexual expression against

sexual restraint – the aim being to maintain girls’ virginity.

Straining to control their own sexuality, adults regulated

adolescent sexuality through the proxy of the young

25 For a survey of attitudes of different societies towards premarital sex, see B. Malinowski, Sex, Culture and Myth (New York, 1929, 1962); Also C.A. Ford & F. Beach, Patterns of Sexual Behaviour (New York, 1951); P.H. Gulliver, Social Control in an African Soceity: A Study of the Arusha Agricultural Masai of Northern Tanganyika (New York); M.E. Ratray, Ashanti Law and Custom (London, 1929); The enforcement of virginity of unmarried women and the chastity of married women have been explored by anthropologists in a range of cultural context. Examples include V. Goddard, (1989), Honour and Shame: The Control of Women’s Sexuality and Group Idenity in Naples, in The Cultural Construction of Sexuality, ed. P. Caplan , 166-192, (London: Routledge, 1989), 166-192; J. Peristiany, Honour and Shame: The Values of a Mediterranean Society (London: Weidenfeld and Nicholson, 1966); A. Schlegel, The Cultural Management of Adolescent Sexuality, in Sexual Nature/Sexual Culture, eds. P. Abramson and S. Pinkerton (Chicago, University of Chicago Press, 1995); J.M. Taggart, J.M., Gender Segregation and the Cultural Construction of Sexuality in Two Hispanic Societies, American Ethnologist,19 (1992), 75-96.

26 This might surprise those of us who, reared in the modern phallo-centric view of sex (vaginal penetration and ejaculation), assume that this has always been the only form of sexual activity and was the dominant pattern of sexual behaviour. To include many variations of the sexual behaviours of past, even present, societies, we need to understand heterosexual sex broadly as any physical intimacy between a man and a woman and to the feelings and fantasies aroused by that intimacy.

23

themselves. The most effective method was to institutionalize a

strategy for the young people to police themselves. Young boys

and girls were organized according to “youth organizations”.

Children circa 9-13 year old belonged to the Intutu. Their older

brothers and sisters circa 15-18 year old joined the

Umtshotsho. Initiated young men and women circa 19 on were

members of the Itlombe.

These organizations acted as effective proxy to socialize

its members into controlled and safe sex play. They played an

important role in directing adolescent sexual energy into

harmless channels. Young boys and girls gathered away from

adult presence. Here, they indulged in “public” (only to peers)

courtship – Ukumetsha - and sex play - Ukumetse.27 The affair

had to be public and not clandestine, and it had to be

conducted away from adult view and direct knowledge. This

endowed peers with joint responsibility for the results of the

courtship and sex play. It also effectively discouraged full

intercourse that might lead to pregnancy. The cardinal rule of

youthful sex play was to keep to sexual intercourse intra crures

– Ukumetse (external or “onanistic” intercourse, usually

27 A clear distinction between Ukumetsha (a friendship) and Ukumetse (an intimacy) was made by a witness at the hearings of the Cape Government Commission on Native Laws and Customs in 1883, Cape of Good Hope,1883, (Native Laws), evidence of Rev. E. Makiwane, 111 #1848.

24

between the girl’s thighs). Full vaginal penetration was

prohibited.28

Thus, peers, rather than adults, enforced sexual

discipline. The logic, unmistakably, was that parents,

themselves intimately implicated in sexual acts – both licit and

illicit – could not effectively impose sexual discipline on the

young. Peers sanctioned the prevention of pregnancy. An

impregnated girl lost membership of her youth organization.

She could not fit into any other. Her exclusion from the

activities of her organization condemned her to live a dull,

lonely life. Socially, she was shamed.

Such a girl’s future was insecure. Loss of her virginity,

especially if she conceived, could severely reduce her chances

at marriage. She was called an Inkazana - a woman who could

never become a wife. Her only sexual partners would now be

mature (especially married) men. A boy who robbed a girl of

her virginity was said to have “opened (or spoilt) her father’s

kraal” – Uvule ubuhlanti buka yihlo. This was because her kin

28 For much of this information, I rely extensively on W.D. Hammond-Tooke, Bhaca Society (Oxford, 1962); W.C. Holden, The Past and Future of the Kaffir Races (London, 1866); Laubscher, Sex, Custom and Psychopathology; J. MacLean, A Compedium of Kafir Law and Custom (Mt. Coke, 1858); P. and I. Mayer, “Socialization by Peers: The Youth Organizations of the Red Xhosa”, in Socialization: The Approach from Social Anthropology (London,); J.H. Soga, The Ama-Xosa: Life and Customs (Lovedale and London, 1932); M. Wilson, Reaction to Conquest 2nd ed. (Oxford, 1961); and the wealth of information provided by the 1883 Report on Native Laws and Customs..

25

valued her as a source of cattle wealth upon her upcoming

marriage.29 The boy who caused her first pregnancy was fined

because he had devalued her.30 For the girl, however, a much

lower fine was awarded if she had been married before – 1

beast and 5 sheep – and no more damages were claimed if she

had a second child and later others.

The disagreeable consequences that a “fallen” girl had to

bear suggest that girls were not regarded as just passive

objects of male concupiscence. They were active agents in

courtship and sex play. They thus bore the results of their

transgressions. Peers – both male and female - strictly

prohibited any attempts to force a girl to metsha – enact

external sex. A boy used the services of a courier, usually her

female mates or relatives, to arrange to meet a girl who had

attracted him.

Peers observed public and strict conduct for arranging

twosomes at peer association dances. They prevented

attempted transgressions, sometimes violently. Peer group

29 To show appreciation of a girl when her breasts began to bud, indicating that she was maturing and approaching the stage of being married off for cattle, her kin exclaimed: “Sesivele ngeempondo” (the cattle are already appearing by their horns). Proverbs and “wise” sayings like this were, and still are, often used to justify women subordination and to conceal the fact, see, M. Schipper, Sources of all Evils: African Proverbs and Sayings on Women (Chicago, 1991).

30 He was fined 1-3 head of cattle and 5-6 head if the sexual intercourse resulted in her pregnancy; Cape Archives , civil cases, records of proceedings, Umtata District (Hereafter, UTA), 1/UTA 2/1/1/2, in Sara v Ela, 21 April 1880.

26

associations were also the sites to enact masculine violence.

Still boys did not direct this violence to girls. They respected

female preferences and choices. Indeed, at peer dances girls

often initiated advances. A girl could publicly proffer gifts to

the boy who she fancied or wipe off the sweat from his face

(Mayer 1970: 175).

These efforts at regulating adolescent sex and preventing

prenuptial pregnancy were singularly effective. Prenuptial

conceptions among non-Christianized Thembu appear to have

been low.31 The few that did occur were far less than among

the Christianized communities.32 Ironically, European

missionaries claimed to be improving what they considered the

depraved African sexual morality. Yet, they condemned the

very institutions and practices that buttressed sexual probity

and directed concupiscence into harmless channels. For them

external sex was “unclean intercourse” - the activities of the 31 Of course the behaviour of the young was changing as the nineteenth century progressed But

wider changes affecting Xhosa communities did not necessarily alter customary expectations regarding sexual behaviour, even though changing behaviour did lead to tensions between generations and within the household. Giving evidence to the commission on Native Laws and Customs in 1883, a local patriarch complained that “now the girls are giving us trouble in this respect (arranged marriages), and this trouble arises through a thing called love. We parents do not comprehend this at all. But one evil, which we see resulting from leaving the choice of a husband to the girls, is, that they are very often seduced If we complain we are told what colonial law is, that it was by mutual consent, and the girls say it is by love.” Native Laws, 304 #5479.

32 Ibid., 178. A Christian Thembu farmer, giving evidence to the Native Affairs Commission in 1904, was adamant that “Christian girls are worse than the red heathen girls; they have more illegitimate children”, evidence of Enoch Mamba, SANAC vol. 2, #14,108 and 14,143. For problems of relying on the findings of such commissions, see A. Ashforth, The Politics of Official Discourse in Twentieth Century South Africa (Oxford, 1990

27

youth organization of mtshotsho “immoral night dancing of

boys”.33 By the end of the century, however, missionaries

themselves were bewailing the ill effects of decades of their

efforts to undermine Thembu practices of sexual restraint.34

This effective code of controlling the sexuality of

unmarried women appears to have succeeded less when

applied on married women. Ideally, married women were

expected to be monogamous. Fidelity and loyalty to their

husbands was stressed regardless of the latter’s polygynous

potential and rampant infidelity.35 This ideal, however, did not

translate to reality. Enforcing wives’ fidelity was highly elusive.

Between 1887 and 1899, during which we can reconstruct

a more complete statistical profile, 631 out of 3118 civil cases

involved “adultery” – or just under 20 per cent. This accords

with the assessment of the chief magistrate of Thembuland 33 Evidence of Rev. Alfred Knopf, Native Laws, 244; Soga 1931; McLaren 1950); For a full

discussion of changing missionary attitudes to Xhosa customs, see W.G. Mills, “The Role of African Clergy in the Reorientation of Xhosa Society to the Plural Society in the Cape Colony, 1850-1915”, unpublished PhD thesis, University of California, 1975.

34 “There is scarcely a girl in the country”, vexed Rev. Davis of the Methodist Mission, “but who has in some sense carnally known the other sex”. For his turn, Bishop Callaway, the Anglican Bishop of St. John’s who had always been the voice of caution, observed at the turn of the twentieth century that “when [the Xhosa people]first became Christians, they were told they were children, and they acted like children. They gave up (alas that the missionaries should not know it) excellent customs of discipline with regard to their children.” Native Affairs Department, NA 120, Rev. Davis to CM, 15 December 1891 and G. Callaway, Guardian, 22 May 1901, respectively.

35 Already at the beginning of the nineteenth century, Alberti had noted that “Adultery, according to the notion of Kaffirs, is only committed by the woman; the man is not restricted in this respect. One usually says: The man is made for all women, the woman only for her husband personally.” Alberti, Alberti’s Account, p. 69; This double-standard in the prohibition of wifely adultery seems almost universal; see for a comparative study G. Bronde, “Extra-marital Sex Norms in Cross-cultural Perspective”, Behavoral Science Research, 15, 3 (1980), pp.181-218.

28

when he observed in 1882 that “a fifth of the cases tried in the

courts of the territory are for seduction and causing pregnancy

and adultery.”36 Extramarital sexual activity may claim pride

of place among other factors that contributed to the significant

demographic growth in this period. Between 1879 and 1899,

the Thembuland’s population was thought to have increased

dramatically by nearly three-fold - from 16,000 to 44,000.37

This was despite the reported prevalence of old men whose

fecundity had, at best, waned. In his bid to explain this

conundrum, the Umtata resident magistrate surmised that the

age of the husband had no effect on birth rates because “most

kaffir women usually have a lover.”38

Based on these court records, seemingly “adultery” cases

represented a minority of civil litigation brought to the courts.

It is virtually impossible to determine how representative these

cases are of the drama of extramarital relations. Is this the tip

of the iceberg, a representative sample, or exceptions rather

than the rule? More over, there is no indication of consistent

trends in “adultery”-related cases as the century progressed.

The chart below, of “adultery” cases appearing in the colonial 36 CMT 1/114, CM to Stanford, 22 February 1882. 37 1/UTA, resident magistrate (hereafter, RM) (Umtata) to CM, 15 October 1879; CMT 1/37,

RM (Umtata to CM, 21 December 1889; CMT 3/171, RM (Umtata to CM, 12 February 1900.38 1/UTA, 5/1/1/6, annual report, 1885.

29

court, hardly reveals any consistent pattern of this social

drama:

This imperils making definitive conclusions about the

proliferation of extramarital relationships in this period.

Neither is there evidence that this drama had become a social

problem. If so, colonial and missionary sources would have

been vocal and active, as they were with other practices

regarded as threatening social order.39 Indeed even if court

records evidenced a sharp rise in prosecuted cases, that would

hardly allow a definitive conclusion that the incidence of

extramarital relationships was increasing. Increase in sexual

39 Remarkably, colonial attitudes to forms of African sexuality were remarkably reticent and cautious in the early period of colonial rule. The colonial administration concerned itself less with this aspect of African life until or unless the sexual behaviour of a section of the population began challenging the apparatus of colonial control, or when a “moral panic” threatened social order. Despite missionary lamentation about African “immorality”, it was only in the first three decades of the twentieth century that colonial officials and missionaries began actively to intervene in the sexual behaviour of the colonised Africans. For the most developed literature on this, see the debate over the 1929-30 ‘female circumcision controversy’ in colonial Kenya, in (Berman and Lonsdale 1992; Hetherington 1998: 93-126; Strobel 1979; Thomas 1998: 121-146; White and Pederson 1991: 647-80); Also (Hunt 1988; Jeater 1993; Summers 1991: 787-807). For what has been called a “crisis of confidence” in Southern Africa in the 1930s and 1940s, see, among others, Central Archives Depot, Pretoria, Records of the Native Economic Commission, 1930-32; Union of South Africa, UG.22, Report of Native Economic Committee, Pretoria, 1932; UG.28-’48, Report of the Native Laws Commission, 1948; Nyasaland Protectorate: Report of the Committee Appointed by His Excellency the Governor to Enquire into Emigrant Labour, 1935, Zomba; Hunter 1933: 259-276; Krige 1936: 1-23; McKittrick 1997: 265-295; Schapera 1933: 59-89; Schapera, 1978; Stent 1948: 161-183. Despite the evidence revealed in these commissions, including that of earlier ones, and missionary rumblings, there was hardly any effort by the colonial state to institute social reform that centred on women, comparable to the activities of the British colonial state in nineteenth century India. For a review and critique of the literature on the latter, see (Tambe 2000).

30

repression may have caused such a trend, suggesting the

existence of a social problem, or a “moral panic”.40

Considering these statistics against the context of many

other factors suggests that these figures may have been the tip

of a submerged iceberg. This impression should be qualified by

acknowledging that making definitive conclusions of trends,

especially on the magnitude of the incidence of extramarital

relationships, is imperiled by problems inherent in depending

on court records as primary evidence. There is hardly a way of

determining the extent to which the cases that reached the

courts were a representative sample of what was happening in

real life in the villages strewn over the Thembuland

countryside. This is mainly because what appears in the court

record is far removed from the actual commission of the

offense in the course of witnessing it, reporting it, recording it

and prosecuting it.41

40 I enlist the definition of a “Moral panic” as defined by Cohen, who first coined the term - collective behaviour during which “a condition, episode, person or group emerges to become defined as a threat to societal values and interests; its nature is presented in a stylized and stereotypical fashion by the mass media…; the moral barricades are manned by editors, bishops, politicians and other right thinking people; socially accredited experts pronounce their diagnosis and solutions; ways of coping are evolved or (more often) resorted to; the condition then disappears, submerges or deteriorates and becomes visible.” Cohen, S. (1972), Folk Devils and Moral Panics, London: Macgibbon and Kee, 1972: 29).

41 For most of these problems, see the classic works of V.A. Gatrell, A.C. and T.B. Hadden "Criminal Statistics and their Interpretation, in Nineteenth Century Society", Essays in the use of Quantitative Methods for the Study of Social Data, ed. E.A. Wrigley (Cambridge: Cambridge University Press, 1972); Monkkonen, E.H (1980), The Quantitative

31

Court records record only those offenders who were tried,

and therefore had been caught. This fact, and the picture

emerging from the testimonies in those cases that were in fact

tried, suggests that many must have never been caught, and

therefore evaded the attention of the court and its record. This

was especially the case when only the husband could

successfully prosecute the lover , as we shall see. Moreover,

aggrieved parties privately initiated “adultery” cases, at their

discretion. Prosecution, therefore, depended on the discretion

of the aggrieved party. Further, despite the availability of

colonial courts, other avenues of conflict resolution continued

to be available. They included the parties themselves, family,

the village and the chiefs’ courts. Before formal prosecution,

family and community members attempted to get offenders to

mend their ways through persuasion, warnings or informal

sanctions.

This makes it virtually impossible to ascertain with any

degree of certainty the volume of “adulterous” offenses that

never reached the colonial courts. Individuals were more

anxious to obtain satisfaction from the offender than to see the

History Study of Crime and Criminal Justice, in History and Crime: Implications for Criminal Justice Policy, J. Inciandi & C.E. Faupel (eds), Beverly Hills: Sage Publications.

32

full weight of the law brought to bear. For example, a chief’s

counselor stated that “it is a common thing for people to settle

these “adultery” cases without reporting”.42 Seemingly, most

“adultery” accusations were admitted, leading to instant,

summary judgment. Others were not tried at all. Some

aggrieved people preferred to forgive and forget the offense.43

Evidence from the court testimonies suggests the obvious –

that prosecution was the end of a long process during which

the parties had attempted to exhaust other less formal and less

spectacular methods of resolving the matter

Some “adultery” accusations undoubtedly resulted from

the new dispensation of colonial incorporation. The colonial

administration provided the legal framework and ideological

cosmography within which village and interpersonal tensions

could work themselves out. Nevertheless, no evidence exists

suggesting that the introduction of colonial courts triggered a

sudden avalanche of reporting “adultery” cases. From the

testimonies, most cases of “adultery” that came to the

magistrate’s court were those of offenders who had accepted

culpability when caught in the act, but had later failed, or

42 1/UTA 2/1/1/14, Bukagana v Mbeko, 10 April 1893. 43 Examples of such forgiving husbands include Nkahla and Cunswana, in 1ECO 2/1/1/8,

Nkahla v Ngwevenweva, 11 May 1887; 1/UTA 2/1/1/4, Cunswana v Dwengaba, 14 March 1892.

33

refused, to pay the fine. Offended husbands, to force offenders

to pay the fine, dragged them to the colonial court. Offenders

who initiated “adultery” cases at colonial courts were often

those who were appealing against the chiefs’’ courts’

judgments. They probably hoped to exploit crucial

contradictions in the dispensing of justice under the new

dispensation of colonial law and magistrates.44

The long distance that one had to travel to the only

colonial court in the district encouraged litigants to resolve

their conflicts privately, or to resort to local judicial structures

and processes. This was coupled with the prohibitive cost of

the trial. Without familiarity with the complicated procedures

of a western court, most litigants engaged the services of an

attorney, adding further costs. Colonial officials often

expressed dissatisfaction with the way court costs imperiled

their efforts to weaken the power of the chiefs by usurping

their judicial functions. “Nearly every civil case is decided by

the headman”, vexed the chief magistrate of the Transkeian

Territories in 1886. He put this down to the bewilderment of

“natives with the various charges and expenses attending a

44 Although magistrates applied “customary law” in their courts, they often departed from it whenever they perceived that the dictates of “justice” demanded it. A poignant example is that of the CM’s decision in the case of Mfeya v Hamele, 25 June 1889, CMT 1/134.

34

civil case, in many instances exceeding far in amount the sum

sued for”.45

In the 1890s, legal costs for the plaintiff amounted to

£3.16s.5d, excluding lawyer’s fees, the latter amounting to £1.3s

for one day’s appearance. Still to be paid if the plaintiff lost the

case were court judgment costs – including stamps and

execution costs amounting to 17/-. The defendant paid these

costs together with the fine if he lost the case. The usual fine for

“adultery” was three head of cattle or five if pregnancy resulted.

The value of a head of cattle in the 1880s was £2.5s. It rose to £3

in the mid 1890s. Thus, even when judgment was in his favour,

the plaintiff still paid at least more than the value of one beast in

court and legal fees. In his turn, the defendant who lost the case

paid the forbidding cost of upward of £13 for “adultery” or £17 if

the “adulterous” sexual act resulted in pregnancy, billed as

follows:46

Category of Costs “Adultery” “Adultery” + Pregnancy

Judgment Fine £7.10s.0d. or 3 head £11.5s.0d or 5 head

45 CMT 2/67, report on inspection of magistrates, CM, Tembuland, to under-secretary of Native Affairs, 28 September 1886; Ibid., report, 14 January 1897. In 1885, he had warned that “the progress and well-being of these people depend much upon their being able to bring their cases to their magistrates burdened as little as possible with expenses and legal technicalities. CMT 1/66, CM to USNA, 19 March 1885.

46 1/UTA 2/1/1/24.

35

ofcattle

of cattle

Court Costs £3.16.5d £3.16.5d

Lawyer’s Fees £1.3s.0d £1.3s.0d

Court Judgment Costs

17/- 17/-

TOTAL £13.6s.5d £17.1s.5d

Unless honour was at stake – and this was apparently not the

case, as we shall see - taking an “adulterous” offense to a

colonial court, or insisting on defending it there, apparently

brought little benefit, if at all.

The privacy of the sexual act also reduced significantly the

proliferation of prosecution in both local, and especially,

colonial courts. Privacy was undoubtedly a rare luxury in these

face-to-face rural communities. Still, sexual activity, generally,

especially when enacted outside marriage, remained a private

affair known about only by the couple concerned. Cracks

undoubtedly occurred in efforts to conceal it. Yet, in Thembu

law and practice, proving successfully that an extramarital

affair existed was exacting. To prove that a sexual act resulting

from such an affair had occurred was fastidious. Successful

36

prosecution depended on a “catch” by the husband of the

offending wife. Court testimonies are replete with evidence

that extramarital affairs were publicly known long before

husbands had discovered, and prosecuted them. Further, they

suggest that the “adultery” cases that did reach the

magistrate’s court were only the tip of an iceberg.

Despite the gender regime that permeated every aspect of

their lives, Thembu women seemingly were relatively

autonomous and rabidly mobile. The independence of Xhosa

women and the apparently elusive efforts of husbands to

control their wives’ effectively, were among the first

characteristics of the Xhosa that struck Alberti when he first

met them in 1807 (Alberti 1968: 59-60). The extreme of this

was the observation of a missionary in 1872 who thought that

men were indeed “completely at the mercy of their wives”

(Chalmers 1872: 1-2). Another missionary compared the legal

status of the Xhosa to that of most European women. He

concluded that that of the Xhosa woman was superior.47 After

beguiling themselves otherwise, colonial officials eventually

saw the reality – The Xhosa woman was “indeed a very

independent creature who, if aggrieved, promptly leaves her

47 Imvo Zabatsundu, 29 April 1903.

37

husband, and is not recovered by him without much trouble

and expense”.48 Thus, while the ideal was for the subordination

of women by men, the real was usually different, especially in

the lower strata of society.49

Thembu women were also remarkably mobile. Only the

large-scale migration of men to distant labour centers has

attracted historical attention, while that of women has escaped

it. It appears that women migration - both internal and long-

distance - was common place before male migration. It was

also a potential threat to marriage and family stability.50

Thembu marriage ideally united families in an alliance

affirming multiple kinds of exchange, including labour, goods

48 B.B.N.A., G.29-‘1903, report of the CM, 48.49 Even one who held the extreme view of Xhosa marriage as “simply the purchase of as many

women by one man as he desires”, was still able to distinguish between the ideal and the real when soon he observed that “although in theory, perhaps, the power of the husband over the wife is considered absolute in every thing but taking her life; yet in reality there are many checks to his power.” (Maclean 1968: 70, 72), respectively. To be sure, there was no unanimity of opinion on the proper status of women among both African and European men who testified at the 1883 Report on Native Laws and Customs. Among those who insisted that a woman was her father’s and husband’s chattel was the Thembu king, Ngangelizwe. Native Laws, vol. 1, 394. Nevertheless, after taking testimony for over two years, the commissioners concluded “All the evidence, however, proves that a woman is not the slave of her husband. He has no property in her. He cannot, according to native law, kill, injure, or cruelly treat her with impunity. He cannot legally sell or prostitute her, and with the exception of paying cattle to her father as dowry upon marriage, there is nothing to indicate that native law or custom treat the wife as a chattel.

50 The only substantive historical studies of women’s migration, both before and during the onset of industrialization, known to the author are ((Cockerton 1996: 291-307; Redding 1996); See also (Cock 1990, 76-96). An understanding of pre-colonial patterns of women mobility would be useful in identifying the types of women who moved into urban centres after the mining revolution and colonisation, and where they were located in the pre-colonial social structure. For a potentially rewarding beginning in this direction, see (Cheater and Gaidzanwa 1996: 189-201).

38

and services. 51 Besides continued obligations to her parents,

married women maintained links with their other relatives The

latter had contributed towards the expenses of the wedding

and had aided her in setting up her new household. After

marriage, married women constantly and regularly visited

their natal and relatives’ homes. The main purposes were to

participate in their families’ ceremonies – as they did to assist

with labour during peak seasons of the agricultural cycle. They

also visited their natal homes to be cared for when sick or to go

through prescribed rites. The latter was especially necessary if

a wife failed to bear children or her children died.

These continued links with natal kin ensured married

women ’ social and economic security and endowed them with

a significant measure of possibilities for autonomous action.52

Thus, a wife whom her husband mistreated, or even whose

husband was impoverished by a localized natural disaster

could leave and seek refuge at her natal homestead or with

kinsmen who had benefited from her lobola.53 Already in 1872,

a European missionary observed that Xhosa women were too

51 Native Laws, evidence of chief Mgudhlwa, vol. 1, 394. 52For some of the anthropological literature on the effects of postmarital contact with natal kin,

see (Leach 1957: 50-55; Dyson and Moore 1983: 35-60.53 For example “I sent my wife to her parents owing to scarcity of food”, 1/UTA, 2/1/1/1,

testimony of Jawa, in Jawa v Mpongo, 1 October 1878.

39

free. They “could, with the connivance and encouragement of

their parents, run home on the flimsiest provocation and that

the poor husband had to pay a fine to get his wife back.”

(Chalmers 1872: 1). The Tembu king, himself, based his view of

the “wickedness” of Thembu women on their rampant mobility:

A woman will run away from her husband and go home and the man will either go to the chief or to the magistrate, and demand his cattle back…In olden times the woman had no rights, and therefore the man got his cattle back, because women are naturally wicked, and have no good ways with them. They are the same now, and therefore a woman has no rights.54

Many young brides returned to their natal homes to go

through the rite de passage they had missed before they

married. The main rite – intonjana55 –was costly. Many guests

attended and extensive feasting and drinking accompanied the

ceremony. It also extended over several weeks. So, girls’

parents usually postponed it until they had improved their

means to afford the ceremony. This necessitated that married

women return home to participate in the rite.56 When

misfortune struck, such as a young bride miscarrying, or failing

54 Report and Proceedings with Appendix of the Government Commission on Native Laws and Customs, 1883 (Hereafter, Native Laws), evidence Tembu Paramount Chief Ngangelizwe, vol. 1, 439.

55 Derived from ukuthomba (to menstruate for the first time), it was a rite of passage for gilrs after their first menstruation, and involved long seclusion of the girl.

56 Native Laws, 87 and 239.

40

to prove her fecundity, a local diviner might prescribe

intonjana as a cure (Soga 1931: 219).

Sending a sick wife to her natal homestead to recuperate

was common. This pre-empted the prospects of her dying at

her marriage. Such an eventuality harboured the potential of

introducing endless litigation for the return of cattle exchange

for her marriage. This occurred especially when the wife had

not borne her husband a child. Some such married women

remained at their natal homesteads for years.57

Other reasons that could see a wife taking refuge at her

natal home included economic and political upheavals. The

unpredictable dictates of the seasons always contributed to the

insecurity of subsistence. Recurring droughts, devastation of

crops by the locust, animal and human epidemics - all–these

ricocheted off one another in relentless succession. Internal

skirmishes and wars worsened their effects. Conflict, incessant

war and migrations were integral parts of Thembu history even

before they lost their independence in the 1850s. From then,

on, almost continual wars unleashed by the colonial advance

devastated these communities.

57 For example. evidence of Zenzile, 1/UTA, Zenzile v Gwadiso, 6 Nov. 1890.

41

Typically South African historiography has given scant

attention to the fate of women amid these disasters and

upheavals, including their implications for the changing gender

relations. Scattered evidence suggests that while in some

circumstances women bore the brunt of war with their

husbands, ideally, most husbands sent their wives and children

away for safety and sustenance to safe locations, including

wives’ natal homes. This occurred especially when a famine or

war was localized. Wives whose husbands died in wars also left

their marital homes and returned to their natal homesteads

with their children.58

Other married women left their marital homes for various

other reasons. Some left claiming that their husbands or their

in-laws ill-treated them. Others were forced out by domestic

violence. Still others feared being killed after they were

accused of witchcraft. 59 Some wives, unknown to their

husbands, had lost their virginity before marriage. They left

their marital homes when their husbands confronted them with

58 Testimonies at adultery and divorce cases in the 1870s and 1880s are replete with references to wives leaving their husbands during wars and famines; Some examples include, evidence of Buyakhaya, 1/UTA 2/1/2, in Buyakhaya v Makatiso, 8 April 1880; evidence of Pita, 1/UTA 2/1/1, Pita v Mampangashe, 16 October 1880; evidence of Jawa, 1/UTA 2/1/1/1, Jawa v Mpongo, 1 October 1878.

59 Examples include 1/UTA 2/1/1/1, Gugulu v Kondlo, 30 August 1878; CMT1/129, Nomantye v Voveka, 22 July 1876; 1/UTA, 2/1/1/1, Tewane, Matololo and N and wife of Macinzana, 31 December 1878.

42

the fact. Others discovered that they had already conceived

upon arriving at their marriage homes. They usually

absconded. 60 Some husbands were inordinately jealous of their

wives, and accused them unjustifiably of “adultery”. A wife who

rebuffed such an accusation was usually suspected of

attempting to conceal her lover. She would be beaten to extract

confession. Some such wives answered with their feet and left

their husbands. 61

Married women also left their marital homes when their

husbands married other wives. Others avoided the

embarrassment of their barrenness, and the domestic and

community pressure it imposed on them, by returning to their

natal homes. 62 Still others left on an exit ticket, with no

intention of ever returning to their husbands.63 In such

circumstances, most husbands preferred pressing for the

restoration of their lobola cattle than of the wife.

60“For example, 1/ECO 2/1/1/8, Ngxikixa v Dwayi, 2 March 1887; 1/ECO 2/1/1/8, Ngxikixa v Dwayi, 2 March 1887; 1/UTA 2/1/1/10, Bonase v Sotyantya, 4 January 1893.

61 NoOffice, wife Gwapi, told the court that her “hustand is very jealous and has beaten me frequently without the slightest cause accusing me of adultery. He drove me away saying he did not want me any longer”. 1/UTA 2/1/1/2, Gwapi v Songqwe, 23 February 1880.

62 See among others, 1/UTA 2/1/1/2, Ruiyela v Nzoyi, 25 August 1880; “CMT 1/129. Ramavuma v Lemane, 5 April, 1876.

63 “We have thousands of cases where the women are driven away from their husbands. They return to their father’s kraal, and they wait year after year either for the husbands to come and claim them again, or for the husband to come and claim his dowry. We have here hundreds and hundreds of instances where, for some reason or other, the woman has left her first husband, and very shortly afterwards she has married again. SANAC, vol 2, #13,940 and 13.941.

43

By far, the largest category of married women who

returned to their natal homesteads left when their parents

teleka’d them. This involved attempts by their parents and

kinsmen to extract more lobola. Theoretically, the quittance of

the lobola debt was never, never achieved. Even when a son-in-

law perceived that he had completed the payment, his wife’s

relatives could always claim additional payment for an

indeterminate number of reasons. Wives’ kinsmen achieved

this by recalling their married daughters, using a variety of

alibis. Once his wife was secured at her home, the husband

could recover her only after payment of additional beasts. Even

when the balance of the lobola was not at issue, every

imaginable contrivance was found to impose an additional

exaction on the son-in-law and his kinsmen.64 These contesting

interests among husband, wife and the couple’s respective kin

imposed onerously on the stability of the marriage.

Thus, built into Thembu marriage was volatility – a

marriages forever in a state of dynamic equilibrium. Most

64 “Where the woman leaves her husband’s kraal without any reason”, a Xhosa lawyer described this ukuketa custom early in the twentieth century “the husband makes attempts to fetch her back. If she refused to go back to her husband’s kraal, then the husband demands back the dowry he paid for her from her father. If the woman has had children by him, the father deducts a beast [a cow] for each child out of the dowry paid for her. A deduction is also made [a beast] for wedding outfit if the father supplied it on the occasion of marriage.” Central Archives, Pretoria, Records of the Native Economic Commission, 1930-32, “Records of Statements from the Transkei”, Statement by A. Qunta of Engcobo, 10 November 1930.

44

extramarital sexual affairs resulted from women’s mobility

more than that of the men. Thembu married women had ample

opportunity to indulge in extramarital affairs or to fall prey to

predatory males. Indeed, the portrait of the wife who started

and sustained an extramarital affair was often only the

reflection of opportunities available to her.

The most common circumstance for an assault on a wife’s

fidelity was during her visit to her maiden home. Such

circumstances loom large in the testimonies – 74 per cent. The

testimony of Nogazi of Engcobo recurs repeatedly in the court

records: “My intimacy with defendant commenced eight years

ago. He visited me only when I went to visit my people.”65

Various variables might account for wives’ dalliance when

visiting their natal homes. Upon marriage, many women left

their old flames – Isidala - back in the villages where they grew

up. As already emphasized, premarital courtship had been a

pre-eminent part of adolescent socialization. Indeed, a young

girl who did not court was suspected to be a “witch” and was

said to be “caressed by impundulu (a mysterious and feared

nocturnal monster). In his turn, a young boy without a

sweetheart was ridiculed as an isishumana (Mayer 1970: 175).

65 1/ECO 2/1/1/19, Mtwesi v Mabeshwana, 19 May 1892.

45

Thus, some married women had maintained these adolescent

relationships in dynamic equilibrium during their sojourn with

their husbands. Others found it difficult to resist renewing

them when they visited their natal villages.66 These

relationships had stopped short of full intercourse. This

presumably enhanced the temptation to consummate them now

that the boyhood sweetheart was married. Culpability for

pregnancy, unless proved otherwise, rested with her husband.

So, close on 86 per cent of women who philandered when

on visits to their maiden villages did so with their girlhood

lovers, or certainly claimed so in their testimonies. Some

brides came to their married homes already pregnant,

unknown to the bridegroom. This occurred especially with

those who had been forced to marry men who had not been

their own choice.67 A young woman might conceive by a local

lover. She would immediately marry the man who had engaged

her. It enabled here to avoid the consequent embarrassment

and shame. To transfer culpability to the latter, she agreed to

66 For example., the testimony of such a wife who resumed her relationship with her girlhood sweetheart: “Defendant was my lover before I married. During my visit home we renewed our intimacy.” 1/UTA 2/1/1/7, Mawa v Pitsana, 9 March 1885.

67 Ideally, Xhosa marriages were arranged Romantic love and the dictates of the couple’s hearts were not among major considerations. “In giving our daughters in marriage, we do not look alone to the cattle but to the character and standing of the man to whom we give her. We do not allow a girl to choose a husband for herself, we choose for her.” Native Laws, 304, #5479.

46

have sexual intercourse with him before she moved to his

village. This was a normal practice once the marriage

negotiations had been completed.68

Women whose marriages broke down invariably returned

to their natal homesteads. Their presence there sent out

ambiguous signals to prowling eyes of the village men. They

considered them Amadikazi (women who were fed up with their

marriages) and were now “common property”. “I thought she

was merely a woman at her father’s kraal”, was a typical

excuse by lovers to whose persistent overtures such women

had eventually succumbed.69

The consequences of wives’ visits to their natal homes

were always ominous. Out of their sight, husbands virtually lost

all ability to monitor the fidelity of their wives. Neither could

they rely on the sentinel of their in-laws – the latter were

intimately implicated in the wife’s extramarital affair, as we

shall see. This led to husbands treading cautiously when such

wives returned. Typically, such suspicious husbands abstained

from the conjugal duty for the duration of gestation. Others

strained to resist the temptation of visiting their wives during 68 In one of such cases, a knowledgeable witness testified that “it is customary for us natives for

a man to sleep with the girl he is marrying.” 1/UTA 2/1/10, Bonase v Sotyantya, 4 January 1893.69 1/UTA 2/1/1/2, Petshe v Kwakwi, 19 January 1880; also “1/UTA 2/1/1/3, Mjila v Mavimini,

17 October 1881.

47

the latter’s sojourn at their natal homesteads. It enabled them

to avoid the disappointment of discovering their wives’

extramarital affair first hand.70

Once at her natal home, a visiting, or run-away wife could

influence her parents to demand payment of more beasts from

her husband or his kinsmen.71 Thus, many parents placed the

fidelity of their married daughters in jeopardy by keeping them

at home. Even the briefest stay at her home could drive a wife

into the ready hands of an awaiting suitor. Some of these

women subsequently refused to return to their husbands even

when the latter were willing to reclaim them.

In fewer cases – 17 per cent – women philandered at their

marital homes. In most such cases, husbands were around,

though not physically with their wives when the sexual act

occurred. In fewer ones, there was a brief separation. In the

latter cases, the separation had merely provided an opportunity

for a budding relationship to blossom, and a sexual act to

occur. Here, too, opportunity for the wife was the critical

70 One husband had an especially traumatic experience when he violated this caution. Soon after he arrived at his wife’s home, her lover intruded “When it was late in the evening”, he testified, “My wife went out of the hut. After a while, defendant went out too. When I saw my wife did not return, I went out. I went to the back of the hut and saw something dark lying a little way from the hut. I went to see what it was. I found it to be defendant and my wife.” 1/ECO 2/1/1/17, Pepu v Gqolwana, 13 September 1891.

71 For example. Pita v Mampangashe, 8 October 1880.

48

element. The central role of gender in shaping divisions of

labour and separation of spheres gave married women many,

and facile, opportunities to philander. They enacted these acts

even around the comforts of their marital homes.

Women were bastions of agricultural production. They

worked in the fields, often without their husbands (Alberti

1968: 56).72 Here, they used their dominant role in agricultural

labour to create opportunities to philander. Others unwittingly

attracted the attention of prowling males. The hoeing season,

especially, was the most volatile, for weeding was the exclusive

domain of women. Women also participated in work parties –

Ilima – in neighbouring villages. There, they started and

sustained extramarital liaisons. They also spent the day at

rivers - washing the laundry. They also fetched water and fuel

from distant sources, They traveled to buy from local trading

stores. They also consulted local doctors at surrounding

villages when sick. 73

72 Bradford has shown how commercialization of agriculture and its attendant technological innovations did not, in fact, masculinize agricultural labour, More-over, even where men participated in the masculine types of agricultural labour – ploughing with the ox-drawn plough, and tramping the harvested crops with bullocks, this still left other categories of agricultural labour like weeding, scarring away birds, and harvesting, to be accomplished by women, H.Bradford, "Peasants, Historians, and Gender, 86-111.

73 See, for example, 1/UTA 2/1/1/4, Manekele v Ndzobole, 12 May 1882; 1/ECO 2/1/1/8, Sanga v Sigangeni, 2 March 1887; 1/ECO 2/1/1/2, Xabetshana v Ndila, 15 August 1882; 1/UTA 2/1/1/1, Mangqalaza v Govini, 18 April 1879. You could hardly rely on a sick wife who was recuperating in the custody of a doctor. When the latter discovered her adulterous affair, her paramour gave him presents, inducing the doctor to turn a blind eye to the affair; See, for example, 1/UTA 2/1/1/1, Mangqalaza v

49

Men also moved about, affording their wives additional

opportunities to philander.74 Before colonial conquest, they

were often away for extended periods on hunting and military

expeditions. 75 The process of colonization was itself

accompanied, and accomplished, by perhaps the most intensive

military confrontations yet known. This led to the separation of

families for extended periods. In others, it resulted in the

permanent break-up of the family.

Undoubtedly, the advancing colonial frontier, progressive

land dispossession and stated colonial policy disturbed this

pre-colonial labour regime. The imposition of Pax Britannica

domesticated men by curbing their warrior tradition and

suppressing military expeditions.76 Land dispossession

deprived men of their hunting grounds, while environmental

Govini, 18 April 1879.74 In a historiographical landscape that concentrates exclusively on out-migration of men to

capitalist labour centres, we know hardly anything about males’ internal movements before, and even amid, migrancy to distant labour centres. Yet, extensive sources for the pre-colonial period paint a picture of relentlessly peripatetic pre-colonial Thembu males.

75 As early as the first decade of the nineteenth century, a traveller observed of the Xhosa people that “they undertake frequent and long journeys, to which these people are very much disposed, and which often have no other object than to visit friends, and possibly also merely serve the purpose of travelling, or just for the sake of gratifying their need for activity, by undertaking hunting expeditions…Women also accompany such hunting expeditions, although the greater number of these have to remain behind in the villages with the children, the very elderly people and the necessary number of herdsmen” (Alberti 1968 29, 74).

76. UG 61/1955, Summary of the Report of the Commission for the Socio-economic Development of the Bantu Areas within the Union of South Africa, 72.

50

degradation accompanying colonization diminished game

herds.

Commercialization of production and rapid demographic

expansion of humans and animals within a circumscribed

territory produced contradictory effects. It exacerbated the

consequences of diminishing availability of land. It also

drastically affected the ecological-balance of the twin

productive activities of horticulture and pastoralism. Dwindling

grazing diminished the herds of game, including those of

domestic animals that men tended. The sequel was the creation

of the colonial ‘menace’ of “idle” men. They prowled around the

villages for female victims of their concupiscence.77

Yet, Thembu males still moved about. Men’s sphere

continued to be outside the home where they managed pastoral

activities. They participated in animal transhumance, staying

away at cattle posts during requisite seasons. They attended

village courts and administered local justice. Paradoxically, the

processes of colonization and dispossession enhanced male

mobility. They forced kinsmen to relocate, and spurred family

77 A hint of what could happen when these young men roamed around the villages comes from the testimony of one of them: “Defendant and I go together courting the girls. I only court the girls, defendant was stealing (courting other people’s wives). He used to say to me “friend I must leave in the night, my sweetheart is somebody’s wife” 1/UTA 2/1/1/22, Godongwana v Ntanyi, 10 October 1895. For colonial efforts, and their relative success, to “feminize” men by turning them from being soldiers to agriculturalists, see (Bradford 2000: 86-111)

51

nucleation. This forced men and women to travel longer

distances to visit relatives, and to stay longer away from their

marriage homes. Like women, men participated in communal

labour arrangements, helping distant relatives, in-laws and

friends with productive labour during peak agricultural

seasons.

Men and women also met in various volatile venues in

their villages. In-groups, they sang and danced together

(Alberti 1968: 79). Seemingly, engaging in carousals was not a

popular form of Thembu entertainment before they began

imbibing prevalent European ways of enchanting themselves

(Alberti 1968: 24; Gardiner 1836; Kay 1833; McAllister 1986).78

This was probably because the existing agricultural technology

could not produce vast quantities of millet, out of which

intoxicating beer was made. Europeans often condemned the

Thembu for intemperance. Yet they were largely responsible

for starting the “evil”. They introduced facilities, mainly the ox-

drawn plough that enhanced the production of excess millet

corn. It often found its way to the brewing pot. The resident

magistrate of the Idutywa district alluded to this when 78 There is substantial evidence that strongly fermented drink was introduced among the Xhosa

by the Mfengu, who had migrated from north of the Tugela. When referring to a strong intoxicating beer, the Xhosa say Utywala beMfengu abupheli ekoyini (You can never finish Mfengu-brewed beer [because it is very strong]).

52

explaining the change from pre-colonial relative temperance to

the rampant intemperance of the colonial era, “but little corn

was cultivated, and but little beer was brewed”.79

So, as the nineteenth century closed, public drunkenness

at “bear-drinking gatherings” was apparently approaching

something of a very real social problem.80 Drinking together

between the adult sexes was a common and acceptable

practice in the peasant villages of late nineteenth century

Thembuland. This activity occurred at several occasions. At

these venues many a wife gave way. Others often took the

initiative themselves. Still other wives could be with their

husbands at a social function and they could leave them

carousing in favour of their lovers.81

Sexual indiscretion could rise to high levels during village

festivities at which sexual jollity accompanied the dual demons

of drink and dancing. The intonjana festivities were the most 79 B.B.N.A., G.9-’94, report of RM of Idutywa, 52; For a detailed discussion of beer drinking in

Xhosa society, see (McAllister 1986).80 Cape Argus, 22 February 1873; Soga, 1931: 399, Native Laws: 136; B.B.N.A., G.1-’90,

Report on Liquor Laws Commission, 1889-1890: question #10806, 6 37, #10806, 654, #12626, 73881 “I was drinking at Mhlazana’s”, was the extraordinary testimony of one husband, “my wife

was there and the defendant. The defendant left and after that my wife went too. I remained drinking. Afterwards, I followed On my way home I saw Mlongamane with my wife amongst some stones and then ran into the bush. I raised an alarm and two men turned up. We got the woman, and they asked the woman and she admitted that she had been caught and she showed the place where they had been lying.” His wife confirmed the testimony: “I remember drinking beer at Mhlazana. I left before my husband…At the beer drink we made arrangement…to go up the ridge just above our kraal. We lay down and had connection. While we were lying down we saw someone coming but it was my mother-in-law and we lay down again. After a while we saw my lhusband come and defendant ran away. No one knew this for we are related” 1/UTA 2/1/1/3, Gege v Mankele, 11 July 1881.

53

volatile of such festivities. The intonjana host allocated women

to male partners to dance and enjoy together. Wives,

unaccompanied by their husbands, were not usually allocated.

Still, many attended unaccompanied. For others, their

husbands left before the end of the festivities. Still other

women chose not to reveal their martial status. These pairings

were not, in themselves, a grant of license for sexual

promiscuity. Nevertheless, they did create considerable

opportunities and temptation for sexual dalliance. Hosts of

these festivities anticipated the volatility of these pairings –

they accepted “love fees” for arranging twosomes.82

Some of these festivities lasted for weeks - often months -

accompanied by an extravaganza of dancing and drinking. This

could strain the restraint of even otherwise honest participants.

The direct link between feasting, dancing and sex was

compelling. It induced colonial officials, themselves inebriated

with the puritan spirit of Victorian morality, to be indifferent to

complaints of consequences of sexual indiscretion

accompanying these festivities.83 European Christian

82 See, for example, 1/UTA 2/1/1/6, Mjobeni v Buyapi, 3 September 1884.83 The comment of the chief magistrate in such a case was typical: “The act, which caused the

pregnancy, was committed at an intonjana dance where respondent permitted his daughter to go. Knowing that such dances are only instituted for the purpose of exciting the lowest animal passion to the highest pitch he was fully aware of the temptation to which his daughter and the young men associating with her would be exposed He is therefore…not entitled to receive any compensation for an act

54

missionaries, in their turn, placed the entire blame for the

“rampant immorality” squarely on intemperance.84

Married women , or their suitors, exploited every

opportunity to philander, or succumbed to the relentless

prompting of exigent suitors. 85 Some yielded even to their own

husband’s male relatives.86 A hospitable husband that

committed the error of putting up a visiting relative or took in a

stranded guest could pay dearly for his hospitality. The

pregnancy of the host’s wife soon provided the telling evidence

of the visit.87 This occurred more commonly to men who were

married to more than one wife. Such a husband could hardly

put up a guest at his house without almost certainly having

trouble with one of his wives. While he slept with one wife, the

encouraged by himself.” CMT1/134, Togwana v Gxuswa, 19 July 1892. 84 “The manhood of the country is being sapped by excessive intemperance and habitual

drunkenness”, quipped an irate missionary, “Adultery is on the increase…There is scarcely a girl in the country but who has in some sense carnally known the other sex. Such being the case, it must be a strong inducement that will lead a man to part with beer gatherings, and to separate himself from a few months from attractive paramours”.NA. 123, Rev. Davis to CM, 15 December 1891.

85 In her testimony, Mbeje’s wife detailed her escapades with her paramour: “Our intimacy is well known. Defendant visited me at my own hut during my husband’s absence. When my husband is at home we meet at the forest and other places”. 1/ECO 2/1/1/18, Mbeje v Nondileki, 2 February 1892; See, also, 1/ECO 2/1/1/18, Jack v Zanjane, 18 February 1892.

86 A salient example is that of the Thembu paramount chief’s own wife. During her visit to a relative’s village, another relative pestered her. She eventually succumbed, and was delivered, in due course, of twins – thanks to the visit “I refused him for a long time but he persisted”, she testified at his trial. “I said you are a connection of ours. He said that it did not count.”. 1/ECO 2/1/1/2, Chief Ngangelizwe v Sidanga, 15 May 1884.

87 A poignant example is that of the “base ingratitude” of one Mpande, whom Mqobolwane had brought up from childhood. His beneficiary had gone so far as to advance him lobola cattle to secure him a wife. One night, the benefactor caught the ungrateful beneficiary flagrante delicto committing adultery with his wife.1/UTA 2/1/1/1, Mgobolane v Mpande, 2 October 1879.

55

other could be entertaining the guest with sexual favours.88 The

guest might even be a relative of one of your wives, and he

would successfully seduce her co-wife.89

Sick, aged, disabled and impotent husbands were

especially vulnerable to assault on their wives’ fidelity. For

others, their disability could spur an otherwise faithful wife to

extramarital sexual pursuit.90 “Young men”, testified a Xhosa

assessor at a case of a husband who had been cuckolded

effortlessly because of his infirmity, “take advantage of

infirmity and old age by taking away the wives.”91 In

polygynous marriages, especially, there was invariably a wide

discrepancy in age between a husband and his second or later

wife. This spurred many such young and sexually active women

to seek sexual fulfillment elsewhere.92

Some local customs and practices also contributed to

placing the fidelity of married women under unwitting stress.

Mandated periods of female sexual abstinence – the

88 For example, 1/UTA 2/1/1/7, Kala v Madolo, 4 May 1884.89 Mbosana, a polygynist, hosted his brother-in-law one evening. The latter had come to visit

his sister - Mbosana’s senior wife. Two months later, the telling evidence of the visit were revealed – Mbosana’s junior wife was pregnant – thanks to the visit. 1/UTA 2/1/1/13, Mbosana vs Siboyana, 21 February 1893

90 See, in this connection, 1/ECO 2/1/1/8, Sanga v Sigangeni, 2 March 1887. 91 1/UTA 2/1/1/10, Timoti v Meschech, 8 February 1889.92 For example, 1/UTA/2/1/1/2, Zondani v Mnyani, 9 August 1880; See also Spiegel (1991),

145-166.

56

postpartum period93 – could be volatile. The period could

extend for over eighteen months. It imposed onerously on

women’s sexual needs while their husbands freely enjoyed sex

with other men’s wives. Husbands faced steep fines when their

wives conceived during postpartum. Wives, themselves,

refused intercourse with their husbands while still nursing

Those proved to have indulged in extramarital sexual acts

while nursing clearly were less exacting with their lovers.94 The

telling evidence came when such a wife conceived. Husbands,

therefore, abstained from sexual intercourse with their wives

during pastpartum. This arrangement did not suit some wives.

They conceived by their lovers while nursing, or contracted

sexually transmitted diseases.95

Some married women challenged the sexual double

standard that allowed polygyny to husbands while enforcing

monogamy on wives. A wife might commence an extramarital

93 For notable studies on the role of the postpartum period in Africa, see (Page and Lesthaegne (eds) 1981; Saucier 1972).

94 An Engcobo woman, Nosayiti, told her husband that she had syphilis. “How come?” enquired the irate husband, “when you have an eight month old child and I have been keeping away from you in accordance with our custom?. “I got it from my paramour”, responded the wife. Her testimony was as follows: “Defendant is my paramour and has been so for a long while. I have had connections with him since the birth of my last child – and when he found himself suffering from syphilis he told me to consult a doctor in order if possible to save myself from the attack which he knew would follow upon our intercourse. When I found this had not saved me, I told my husband about it.”. 1/ECO 2/1/1/1, Bekani v Umqunqu, 7 December 1882.

95 In such circumstances, the convention was for the husband to make a charge of adultery by sending his wife and child to the paramour, asking him to wean the child; See, for example, 1/UTA 2/1/1/26, Matshiba v Malongisa, 11 February 1897.

57

liaison at the mere announcement by her husbands that he

intended marrying another wife. Polygynous husbands could

hardly vouch for the fidelity of their wives while the former

slept with their other wives. Women married to polygynous

husbands displayed empathy to one another by arranging

extramarital sexual liaisons for their neglected colleagues. 96

Other married women – though apparently few in the

records - were abjectly indiscreet. They enacted extramarital

sex in circumstances where their husbands were present.97

Others took their chances during their husband’s brief

absence.98 Indeed, it was relatively facile to entrap the naughty

wife and her offending lover. Botyi, of Engcobo, is an example

of several who set up successful surveillance. After warning his

wife to terminate an exposed relationship with one Benyana, he

“went away from the kraal one day and hid about half a mile

off”. From here, he “saw Benyana go into my hut three times.

The third time he came out with my wife and they then both

96 A classic example is that of one of Mbalungurana’s wives who kept watch for her husband while her comrade-at-marriage indulged in sex with her paramour in her hut.1/UTA 2/1/1/2, 13 March 1880.

97 A classic in this category is the case of Jojo’s wife. She and her husband visited a neighbouring village. From their arrival, the couple slept in the company of four other inmates, one of whom was the woman’s old lover. What followed defies credulity: “On the 4th night, my husband caught me in adultery with Ulunga…I did not sleep alongside my husband in the hut, but besides Ulunga.” 1/UTA 2/1/1/4, Jojo v Ulunga, 11 September 1882.

98 Some wives posted sentinels at vantage points to keep watch for their husbands while they committed adultery in their huts, For example. 1/UTA 2/1/1/2, Mbalangorana v Mabotu, 4 May 1880

58

went into the hut. I then went home. When I got there I found

them seating near to each other. I said to him: I have got you.”

By then, however, the act was over. Only the wife remained to

recount the story.99

Clearly, then, married women could commence,

consummate and sustain extramarital relationships fairly

easily. The determinant factor was the possibility of

encounters. Mobile, unchaperoned, and with a large measure

of autonomy, Thembu women had ample chances to engage in

extramarital affairs. They apparently fully exploited these

opportunities. Severely restricted in controlling wives’

extramarital relationships, the law, husbands, the community-

at-large, and later, the colonial state tolerated it, and

contended with watching that it occurred within the prescribed

parameters of the codes governing it.

The very legal definition of “adultery” reflected the laissez

fair attitude towards this social drama and weakened efforts to

control it. Committing “adultery” with one’s wife was regarded

99 “Benyana came one day to my hut but I was not in. He came again afterwards and I was in. He asked “where is Botyi?” I replied, “I do not know”. He then went out, and soon after returned and said “let us go to another kraal and have connection.” I said “let’s go”. Benyana went out and I followed and stood outside. He went a short way on and then returned, entered the hut and called me; I entered also. He said “I am afraid to go to the other kraal, let us have connection here”. I said “alright”, and we had connection. The little child we have driven off returned and we sat up. Just then Botyi came in and said to Benyana “I have got you.” 1/ECO 2/1/1/1, Botyi v Benyana, 3 May 1882.

59

as an offense by the lover against the wife’s husband.

Fundamentally, it was theft of the wronged husband’s property

by another man – a violation of the husband’s rights. Husbands

insisted on sole rights of access to their wives. They considered

that they would be devalued by other men’s use. “You are

making my wife your prostitute”, vexed a husband who caught

his wife with her lover in the act.100 For this reason, the

husband claimed damages from his wife’s lover .101 The

ideology of compensatory damages for “adultery” looms so

large in magisterial court records regarding this offense that a

researcher cannot but be struck forcibly by the wealth of

references to it. The label on every court record and index

relating to “adultery” cases curtly states “Damages for

adultery”.

This logic in the construction of wives’ extramarital

relationships might suggest men constructed this social drama

as part of the ideology of accumulation and maximization of

resources, as McCaskie has argued for pre-colonial Asante

(McCaskie 1981). This, however, would entail the existence of

significant degrees of differentiation among cattle-owning men.

100 1/UTA, 2/1/1/6, Ngalo v Nali, 17 September 1884.101 As one witness testified, an seducer was “a thief stealing another man’s wife.” 1/ECO

2/1/1/19, Mbambani v Mzilwa, 27 March 1893.

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The available evidence, however, does not permit us to discern

the age and social profiles of the dramatis personae in

extramarital relationships - the husband, the wife, and the

wife’s lover .102 No evidence exists that might show an age

disparity between husbands and their wives’ lovers to allow us

to view the extramarital activity as part of a generational

conflict. We are also unable to say definitively that there was a

disparity in social status between the husband and the lover to

suggest that husbands hauled the latter to court to gain

leverage over them as part of a class conflict. Such conclusions

must await similar meticulous research into the social profiles

of individuals in these communities as has been undertaken for

the Asante.103

A more compelling explanation might seek to locate this

construction of the offense of “adultery” in the general

construction of justice in this society. For the Xhosa, generally,

and especially the Thembu, justice was restorative104 –

ukuhlawula. Punishment focused on restoring the loss suffered

102 In one case in 1884, councillors advised the magistrate’s court that the amount awarded in adultery cases varied according to the “social position or wealth of the person” (not specific whether the offended husband or the offending paramour) and that it ranged from 2 to 10 head of cattle; 1/UTA 2/1/1/5 Dyonas v Ntishi, 7 February 1884.

103 For this initiative, see the various volumes of Asantesem. For a pioneering, but exploratory, attempt on the aMaXhosa, see (Lewis, 1984; Lewis, 1989; Lewis, 1991: 244-268).

104 The concept and practice of “restorative” justice has recently gained wide popularity in academic, legal and popular discourses; See, among others (Consedine 1995; Crawford, Strong, Sargeant, Souryal and Van Ness 1990; Galaway and Hudson (eds) 1996; Morrel 1993).

61

by the victim, holding the offender accountable for the harm he

had caused, and rebuilding peace within the community. It was

reparative, rather than retributive. Punishment was not for its

own sake, but sought to repair the harm done to real people

and the community.105

In this construction of justice, restoration almost

invariably involved fining the offender and transferring the fine

thus paid to the offended. In an extramarital relationship the

offender was the male lover of a married woman, and the

offended was the husband of the seduced woman.

Underpinning this construction of justice, however, was a

gendered construct in the relationship between men and

women. In “adultery” cases, especially, women were

constructed as perpetual jural and social minors, as they were

in family law and marriage, generally. By colonial law, women

could sue and be sued. In “customary” law, however – the law

applied by colonial magistrates- she could only sue through a

male relative. This was especially enforced in matters involving

105 “The primary object of Xhosa law…is to preserve tribal equilibrium”, Soga wrote, “any punishment administered for disturbing the balance of tribal life is of a constructive or corrective character; to restore what has been lost in stability by the action of any individual or individuals…this idea is ingrained in the fibre of the people. The ethical question scarcely counts, restoration is the principal thing.”( Soga 1931: 44)

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extramarital relationships, marriage and the family (Redding

1993).

Thus, “adultery”, was constructed as a transaction between

males. Married women were not tried for “adultery”, only their

lover s (Alberti 1968: 69). Constructing “adultery” as a theft

implied that women were not regarded as victims, but merely

the objects of the offense. Wronged husbands, local chiefs, nor

colonial magistrates later neglected to consider whether the

sexual affair was by consent or force. In “adultery” trials, women

could not reveal their motives for engaging in extramarital

affairs and their agency in this drama because they were not

asked. Magistrates and offended husbands were more

interested in deeds than in motives. They thus prodded

witnesses about the one, but not the other.106 It was enough

that a theft had occurred and, therefore, had to be “made

right”.107 Thus, women are made to emerge in the records as

106 Sexual relations, especially heterosexual ones, have been at the heart of the scholarship that has made gender a key historical category and that has influenced gender studies in Africa. Sexual “crimality” especially – prostitution, rape, sodomy and, although universally under-researched, adultery, have found a secure niche in the arsenal of feminist scholarship on women’s oppression by men. Undoubtedly, this is because feminist scholars and activists have taken the study of sex “crimes” as a paradigmatic way of investigating this oppression. For them, in heterosexual relations, especially in sex “crimes” lies the most fundamental site of women’s oppression by men. see A. Rich, “Compulsory Heterosexuality and Lesbian Existence”, Signs, 5 (1980); For sexual “crimes” as fundamental sites of women’s oppression by men, see, A. Clark, Women’s Silence, Men’s Violence: Sexual Assault in England, 1770-1845 (London, 1987); M.K. Mcintosh, Controlling Misbehaviour in England, 1370-1600 (Cambridge, 1998); J. Walkowitz, Prostitution and Victorian Society: Women, Class and the State (Cambridge, 1980); also K. Peiss & C. Simmons, Passion and Power: Sexuality in History (Philadelphia, 1989)

107 1/ECO 2/1/1/19, Mbambani v Mzilwa, 27 March 1893.

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nothing more than sexual automata that acted out a script of

male ambitions, concupiscence and/or competition. They

appear to have had no agency in this critical arena where

gender and power were negotiated and contested. This, as we

shall see, was hardly the case.

A fundamental contradiction in this construction of

extramarital relationships is that married men were themselves

intimately implicated in extramarital relationships with other

men’s wives. Defendants in virtually all “adultery” cases that

appeared in court were married men. We also know this from

the fact that had it been young, unmarried men, they would

have had to be represented in court by their fathers or senior

relatives, as prescribed by local convention. Colonial

magistrates enforced this convention and considered

unmarried men without locus standi in law.

The preeminence of the ideology of compensatory

damages for “adultery” ensured that mainly those who

possessed some property could be tried for “adultery” offenses.

Claiming damages from an unmarried man would have been

unavailing. He possessed no property and could, therefore, not

pay the fine. For example, in one case involving an unmarried

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man that had impregnated a girl, his father was ordered to pay

the fine. The latter protested that “as the Transkei is now a

part of the colony, the native law at this point does not obtain.

We are now under the Queen and not Kreli.”(Xhosa king). The

magistrate, however, applied “native law”, arguing that

“according to native law, the father is responsible for the acts

of his children while they live with him.”108 The records of

“adultery” cases do not include any incident where an elder

relative appeared on behalf of an unmarried defendant.

In addition, extramarital relationships were not a serious

threat to marriage, the family, and society in these pre-

Christian communities. Some wives whose extramarital

relationships were discovered did leave their husbands.

Especially, this occurred when a husband assaulted his wife on

suspicion, or evidence, that she was shielding her lover. Such

wives, however, were most likely ready to leave their marital

homes. They most probably engaged in extramarital

relationship to ease and hasten the end of the marriage.

The few such wives that we could identify sued their

husbands for divorce.109 Others just left, their departure 108 1/BUT 2/1/1/2, Toni vs Masebeni, 5 May 1885.109 A notable example is that of Noweti, wife of Feni. She resolutely refused to admit her

adultery and subsequently sued her husband for divorce because he “beats me for denying that I committed adultery.” In his judgement, the magistrate concluded that “the woman evidently wishes to

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eventually precipitating a divorce. Still, most husbands of

wives who engaged in extramarital affairs did not press a

divorce suit, forgave their wives and adopted the “illegitimate”

child. Friends and kin of those who threatened to divorce their

erring wives were more likely to persuade them to “look away

the offense and take her back.”110

The results of the extramarital relationships did not bring

upon a serious problem. In this society, “illegitimacy” did not

stigmatize the offspring. Neither did it disinherit, nor place its

paternity in question. As all African communities in the region

still say: “A man does not beget children; they are begotten by

the cattle exchanged for their mother.”111 Children, therefore,

belonged to the man who exchanged lobola for their mother,

irrespective of who sired them.

obtain a divorce to shield her lover and prevent his having to pay damages.” 1/UTA 2/1/1/4, Noweti v Feni, 16 May 1879.

110 CMT 2/103, Toneso vs Toneso, 6 March 1880.111 UG 61/1955, Summary of the Report of the Commission for the Socio-Economic

Development of the Bantu areas Within the Union of South Africa, 73.

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The honour112 of the wronged husband was apparently

unaffected by the ‘scandal’ surrounding his wife’s extramarital

relationship. We perceive no notion that a man’s honour and

shame were directly linked to his ability to control the sexual

behaviour of his wife.113 No direct evidence exists to suggest that

such a husband was particularly solicitous of his own reputation.

Family and community did not shame or dishonour him. Neither

is there evidence that such a husband pressed charges against

his wife’s lover to defend his own personal integrity and

reputation.114 Most probably, a man’s status within the

community less depended on his sexual honour alone. More

prestigious were his economic and political standing, marital

status, and age.

112 We defined “honour” as the valuing of a person according to a publicly established reputation. It is the construction of self as socially worthy. The notion of honour to help account for the mentality and behaviour of ordinary people has been most developed by anthropologists’ investigations of societies in the Mediterranean basin. For an introduction to the extensive literature, see, D.D. Gilmore, “Anthropology of the Mediterranean Area”, Annual review of Anthropology, xi (1982), pp. 175-205; For the main anthology, see, J.G. Peristiany (ed), Honour and Shame:The Values of Mediterranean Society (London, 1965); Historians, especially those writing on Early Modern Europe, have also used this notion, the classic, perhaps, being J.S. Amelog, Honoured Citizens of Bacelona: Patrician Culture and Class Relations, 1490-1714 (Princeton, 1986); For a pioneering work on the notion of honour in an African society, see (Nelson 1989: 217-239).

113 This, however, is surprising for a society that so much stressed the masculinity and femininity. It needs further exploration. This can only be achieved when scholars of African societies begin to ask what the ideal of patriarchy meant for the reality of men’s lives and when they shift from the inordinate emphasis on the study of men’s public lives to that of their private lives. For such a shift, albeit for a western society, see the useful study by (Foster 1999); For the complex problems inherent in analysing honour and reputation in various societies, see Herzfeld 1980: 339-351).

114 “To improve the morality of the native is the most difficult problem”, vexed the resident magistrate of the Umtata district, albeit viewing the problem through the lens of puritanical sexual morality, “because indulgence in immorality is not regarded by them as entailing any disgrace or loss of social status, and a young married woman, who has no lover is taunted by the others with the fact.” NA 120, H. Stanford, Report on Native Labour, 15 December 1891.

67

A man with higher status in the community might have

considered that his wife’s lover had placed his honour at

stake.115 This may explain why an extramarital relationship with

royalty’s wife incurred a higher fine – seven head of cattle.116 For

example, in 1884, the Thembu paramount chief’s wife, second in

rank, bore twins from an extramarital affair. The chief

successfully sued the erring man for damages amounting to

twenty head of cattle. This was far higher than the fine imposed

on ordinary peasants - three head of cattle was the standard fine

for every one.117 For an ordinary peasant, his intention in

bringing his wife’s lover to court was most likely influenced by

the view that his property rights had been infringed. On that

score alone, damages were claimed.

Female honour, in turn, did not rest on the maintenance of

a reputation for sexual probity. Neither did a wife’s sexual

rectitude mark her husband’s honour. Indeed, missionary

attempts to “improve the morality” of the Thembu faltered on

the latter’s seemingly lackadaisical sexual attitudes.

Undoubtedly viewing the problem through western and

115 The value of lobola in marriages involving chiefs and those who occupied upper echelons in the social hierarchy was invariably higher than for the normal peasant Soga, The AmaXhosa, pp.263-85, Alberti, Alberti’s Account, pp.59-70; Wilson, Reaction. P.30,.32, 122-9, 190-3, 212-3; Hammond-Tooke, Bhaca Society, pp.47-50, 132-7, 302-8.

116 1/LBE, 2/1/1/, chief Qwiliso v Ngala, 18 September 1894. 117 1/ECO 2/1/1/2, chief Ngangelizwe v Sidanga, 15 May 1884.

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Christian lens, the resident magistrate of the Umtata district

vexed that “To improve the morality of the native is the most

difficult problem. Indulgence in immorality is not regarded by

them as entailing any disgrace or loss of social status, and a

young married woman, who has no lover is taunted by the others

with the fact.” 118

So, seemingly husbands did not prosecute their wives’

lover s to defend the moral honour of their wives. Dragging

one’s wife as a witness to a public court could hardly have

fulfilled such a purpose. It appears that she did not have to

endure public scandal after the trial was over. Still, she had

borne a public spectacle in court. Her interrogation by an

unsympathetic, overly masculine, court must have assaulted

her propriety. She had to make lurid descriptions of the sexual

act she had engaged in. Still, cultural standards apparently did

not shame her.

Colonial magistrates accepted and applied this

construction of “adultery”.119 They understood that extramarital

118 NA 120, H. Stanford, Report on Native Labour, 15 December 1891; Ideals of women’s respectability, and of the family, seem to have begun being promoted much later, in the 1930s, and limited mainly to urbanized Africans. In this connection, see (Eales 1991: 49-58); For a similar process in England, see, among others (Thompson 1988)

119 The interaction between colonial law and local processes of interpersonal conflict in Thembuland was different from that observed elsewhere on the colonial landscape. By colonial policy magistrate in the Transkeian Territories had the discretion to apply “customary law” in civil cases where both litigants were Africans. They were generally inclined to do so. For them, “customary law” was “the law which we as white people found being administered here by the natives.” SANAC , vol. 2 #13,841;

69

relationships did not threaten marriage, and therefore was a

serious threat neither to the local society nor to colonial control.

For example, in 1878 the magistrate of the Idutywa district

decided against the Thembu paramount chief Ngangelizwe in a

case of “adultery” against his wife’s lover. He did this because

Furthermore, unlike elsewhere, “customary law” in the Transkeian territories was not codified This was mainly because it would have been virtually impossible to find common ground for making a code for such heterogeneous communities that constituted the Transkeian territories. Though forced to live together in artificially created districts, these communities had different custom, practices and laws. The other reason is that colonial magistrates believed in transforming Transkeian communities gradually. For a detailed discussion of the ideas and attitudes of colonial officials in the Transkeian Territories in this period, see S. Martin, “Ideas and Attitudes of Transkeian Administrators in the Late Nineteenth Century”, unpublished B.A. (Hons) dissertation, University of Cape Town, 1975; For the evolution of these notions, their application and consequences, see M. Mamdani, Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism (Kampala, Cape Town, London, 1996); These “customary” codes were to be consolidated into a compendium setting out the “best” agenda for ruling colonised and controlling colonised people by the architect of “indirect rule”, Lord Frederick Lugard, se F.D. Lugard, The Dual Mandate in British Tropical Africa (1922) [“Methods of Ruling Native Races”, pp.193-213], excepted and reprinted in R.R. Grinker & C.B. Steiner (eds.), Perspective on Africa: A Reader in Culture, History and Representation (Oxford, 1997).They were thus disinclined to codify their customs and laws. They hoped that they would fall into disuse in time (See, for example, the evidence of Magistrate Chalmers to the South African Native Affairs Commission: “Codification of Native law would stereotype native customs which are desirable to be left to disappear in course of time”. SANAC, evidence of Chalmers, #13,873). Ofcourse, the application of customary practices by colonial magistrates undoubtedly reflected colonial and foreign mentalities. Colonial courts fixed customary processes of dispute resolution, robbing them of their inherently fluid and malleable character (For the most noteworthy studies in the expansive literature on this process, see, M. Chanock, “Making Customary Law: Men, Women and Courts in Colonial Northern Rhodesia”, in M. Hay & M. Wright (eds.), African Women and the Law: Historical Perspectives (Boston, 1982); Chanock, Law, Custom and Social Order: The Colonial Experience in Malawi and Zambia (Cambridge, 1985); Chanock & S.E. Moore, Social Facts and Fabrications: ‘Customary’ Law on Kilimanjaro, 1880 – 1980 (Cambridge, 1986); R. Cocking, “British Justice and the Native Tribunals of the Southern Gold Coast Colony”, Journal of African History, 34, 1 (1993), pp. 3-21; J.L. Comaroff, “Images of Empire, Contests or Conscience: Models of Colonial Domination in South Africa”, American Ethnologist, 16 (1989), pp. 661-685; J.L. Comaroff & S. Roberts, Rules and Processes: The Cultural Logic of dispute in an African Context (Chicago, 1981); F. Cooper & A.L. Stoler, “Tensions of Empire: Colonial Control and Visions of Rule”, American Ethnologist, 16 (1989), pp. 609-621; Mann & Roberts (eds.), Law and Colonialism in Africa.; W.J. Mommsen & J.A. de Moor (eds.), European Expansion and the Law (Oxford, 1992); S.F. Moore, Social Facts and Fabrications: ‘Customary’ Law on Kilimanjaro, 1880-1890 (Cambridge, 1986); T. Ranger, “The Invention of Tradition in Colonial Africa”, in E. Hobsbawn & T. Ranger, The Invention of Tradition (Cambridge, 1983); E. Schmidt, Peasants, Traders and Wives: Shona Women in the History of Zimbabwe, 1870 – 1939 (Portsmouth, 1992); J. Starr & J.F. Collier (eds.), “Introduction: Dialogue in Legal Anthropology”, in History and Power in the Study of Law (Ithaca, 1989).. Still, the interaction between these contesting systems was a complex one, both in turn shaping each other. Local ideologies and practices engaged robustly and often auspiciously with colonial law, even altering the meaning, functioning and consequences of formal laws. For example, writing in 1894, the chief magistrate of the Transkeian Territories commented on the “rapidly increasing cunning and subtlety” of Xhosa litigants.

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he thought the chief had condoned the offense by continuing to

live with the wife after the offense. The chief magistrate of

Thembuland, however, turned aside the decision, observing

that “A native does not separate from his wife because of her

adultery and this does not prevent him from getting damages

from the man who commits the adultery should the case be

proved”.120

So, husbands, the local state, colonial officials and the

community-at-large contended with enforcing codes that

regulated the conduct of extramarital relationships. The

efficacy of these efforts, however, also depended on wives’

“It is marvellous”, he observed, “how rapidly since the introduction of the circuit court and trial by jury, natives have grasped the advantage to be derived by producing witnesses in defence and establishing alibis when charged with any criminal offence. It is well known…how simple a matter it is to summon native witnesses and it is almost refreshing to observe with what simplicity, after a case is over, those who have been in peril will explain to an admiring crowd, almost at the door of the court, how easily and effectually they succeeded in defeating the ends of justice.” B.B.N.A., G.9-94, P.48. This accords with the new revisionism that is replacing the old view that saw European colonialism as following rational laws of logic and imposing itself gingerly on the helpless and hapless colonised. The former emphasises the contingent, constructed and cultural dimension of colonialism, recognising the agency of the colonised and its impact on the colonial process itself. See, among others, H. Callaway, Gender, Culture and Empire: European Women in Colonial Nigeria (Urbana, 1987); F. Cooper, “Conflict and Connection: rethinking Colonial African History", American Historical review, 99, 5 (1994) PAGE; F. Cooper & A.L. Stoler (eds.), Tensions of Empire, special section in the American Ethnologist, 16, 4 (1989); J.L. Comaroff & J. Comaroff, Revelation and revolution, vol. II: The Dialectics of Modernity on a South African Frontier (Chicago, 1997); N.B. Dirks, “Introduction: Colonialism and Culture”, in N. Dirks (ed.), Colonialism and Culture (Ann Arbor), 1992); T. Michel, Colonising Egypt (Berkeley, 1991); G. Stocking Jr. (ed.), Colonial Situations: Essays on the Contextualisation of Ethnographic Knowledge, History of Anthropology, vol. 7 (Madison, 1991); N.J. Thomas, Colonialism’s Culture: Anthropology, Travel and Government (Chicago, 1997); D. Trotter, “Colonial Subjects”, Critical Quarterly, 32, 3 (1990), pp.3-20.

120 CMT 1/79, CM to RM, Idutywa, 7 November 1878. An early European traveller had already observed this fact in the first decade of the 1800s: “The adulteress herself need not otherwise fear any punishment, but on the contrary, she will, on the assumption that she was purely induced by the exertions of her seducer to be unfaithful to her husband, be absolved The latter will also not harbour further resentment against her and will adopt such an illegitimate child as his own” (Alberti 1968,: 70.

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agency and their manipulation of the parameters of these

codes. Married women conducted their extramarital

relationships within the parameters of an elaborate edifice of

distinct and established social rules. They had negotiated many

of these rules with their lovers, their husbands and the

community at large. They had constructed others themselves.

Still others had been imposed on them. Nevertheless, married

women had the potential to manipulate these rules, and often

did

The main requirement was to discourage clandestine

affairs as the sexuality of unmarried girls was regulated. This

most probably was the only way that the society could regulate

this social drama. The affair had to be public, known to

everyone, except the husband until he caught the culprits in the

act.

Custom and practice demanded, and ensured, that the

very initial approach in the assault on a wife’s fidelity be a

thoroughfare. In 92 per cent of the cases studied, the

extramarital affair had started through a network of a courier

system.121 A consternation of married women ’ female relatives 121 “About seven months, ago”, was the typical testimony of a witness who had provided

courier services in an adulterous affair, “defendant sent me to plaintiff’s wife to inform her that he wished to have connection with her…I went to the woman. She consented.”, 1/UTA, 2/1/1/2, Bill v Nyosana, 19 July 1880.

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was privy to the extramarital relationship. It included her

sisters and brothers, her female in-laws, co-wives , and her

other female associates. They were the most trusted conduits

in the courtship and kept a keen watch on the relationship.

They acted as sentinels; watching out for the husband while his

wife enacted sex with her lover. Indeed, they displayed a

decidedly permissive attitude towards her actions.122 The

testimony of such a wife’s grand mother might strain credulity:

Plaintiff’s wife is my grand daughter. I know that defendant visited her frequently. We were all aware of the intimacy between them. I saw him one day coming out of the hut she occupied and demanded the usual fee. One day he took the woman away to his kraal to make beer for him. This time he paid a fee of a shilling to an old woman of the kraal.123

Polygynous husbands even sent their wives as conduits

in extramarital overtures. Some of their wives, especially those

that were older, actively promoted the extramarital

relationship of their junior co-wives .124 When wives ’ male

relatives discovered the affair, they tacitly joined the

conspiracy. This occurred even when the affair resulted in

122 For a typical testimony of a witness, see, (1/UTA 2/1/1/5, Nxanga v Jashau, 11 August 1883).

123 1/UTA 2/1/1/6, Gobizembi v Ncubela, 17 Ocober 1884.124 For example, 1/UTA 2/1/1/6, Stemela v Mafxa, 20 September 1884; In a remarkable

testimony, an adulterous wife recounted how one of her lover ‘s wives and one of her own husband’s wives acted as conduits: “Defendant sent his wife and another woman as messengers to me. They brought a half-crown as a pledge. I agreed and during the same week we had connections. My husband’s other wife was also sent”, 1/ECO 2/1/1/6, Badixo v Kondile, 19 May 1885.

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pregnancy. They argued that “it was not their business” to

police the wife, but “of the husband”.125

Married women’s lovers offered distinct categories of gifts

to their conduits. Other messengers and those who came to

know about the affair demanded these gifts. This proffering of

gifts was called ukubeka – to tender a present to the successful

messenger or to those who discovered the affair.126 Witnesses

who received these gifts referred to them in their testimonies

as the “usual” gifts or the “customary love fee”.127 The first

presentation was the isikepekepe. It bound the pair together

and marked the intimacy between them. It also signified tacit

approval of relatives for them to engage in extramarital sex.

125 One wife’s brother testified that upon catching his sister with her paramour, and the latter offering to marry the woman, he told him: “I can’t give her to you because she is married. But you may make love to her if your choose.”1/UTA 2/1/1/2, Pita v Mampangashe, 8 October 1880. Another, upon catching his sister in similar circumstances, was offered by her paramour, a young ewe sheep. 1/UTA 2/1/1/, Noti v Mavanvam, 24 March 1879; See, also, 1/UTA 2/1/1/24, Tshecelo v Mhlambiso, 6 October 1893.

126 1/UTA, 2/1/1/2, Umdudu v Zondani, 20 September 1880; The witness in this case, who had provided courier service in an assault on a wife’s fidelity described this gift-proffering practice as “our custom”, without which “he would not be allowed to have connection with the woman.”

127 The precise significance of this gift-proferring is still unclear. Are we dealing here with an incipient form of institutionalized prostitution, defined as the commodification of casual sex, and replete with pimps and payment of commissions to brokers who brought potential clients to wives, or are we rather dealing with complex gender relations in which women considered their sexuality as valuable and expected men to reward them for sexual intercourse; See, for example, A. Weiner, Women of Value, Men of Renown (Austin, 1976); For a full-blown institution of prostitution in pre-colonial Africa, and an argument that it predated industrialisation, see the ground-breaking work of E. Akyeampong,, “Sexuality and Prostitution among the Akan of the Gold Coast c. 1650-1950”, Past and Present, 156 (August 1997), pp. 144-171.

74

Once the affair was established, the ikogu present was

demanded. It signaled that a sexual affair had now begun.128

These gifts were important in substantiating the evidence

of witnesses at the trials of lover s, and were critical to the

wronged husband’ successful bid to win damages. “Where are

the usual presents given in matters of this kind”, was the

typical retort of alleged lover s when denying culpability in

court.129 Some lover s made direct overtures. These, however,

form an insignificant number in the records. They stood a good

chance of winning their defense at their trials for lack of

corroborating evidence. Gifts by lovers constituted a “catch”.

If they were not proffered, the husband strained to satisfy the

court that an extramarital affair existed, less that a sexual act

had occurred.

Married women , however, insisted that their lover s

proffer these presents. It bolstered their testimony in court,

especially when pregnancy could result from the affair, as it

often did. Yet, even when suitors made overtures directly, the

affair was still potentially prone to public disclosure. This was

because it was conducted publicly. Other reasons most

128 For a detailed description of this gift-offering, see, 1/ECO 2/1/1, Bekani v Umqunqu, 7 December 1882.

129 1/UTA 2/1/1/5, Ntanga v Gushana, 10 March 1884.

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probably included the dearth of privacy. Relatives also stood to

benefit from the affair - in gifts and fees proffered by lover s

An average household most likely had three huts – one for

cooking and the other two for sleeping adults and children,

respectively (Alberti 1968,: 53) In such circumstances, privacy

was a rare privilege, rendering concealment of sexual dalliance

difficult. lovers also visited their wifely lovers publicly. This

occurred especially when married women sojourned at their

maiden’s villages.130 Certainly, extramarital sex occurred at

diverse venues – behind dwellings, in bushes, on riverbanks,

animal enclosures, and ravines, in the fields, forests and in

open meadows. This, however, did not deter the exposure of

the affair, sooner than later. By the time the affair came to

court, it was already common knowledge in the community.

Suitors also presented their lovers intermittently with

gifts. These took the form mainly of handkerchiefs, rings,

beads, necklaces, snuffboxes and blankets - even money. When

husbands confronted their wives about the sources of these

130 For example, “I was living at my brother’s. Defendant did not send a messenger but made his overtures himself. I consented and he used to visit me openly at my brother’s kraal. My brother’s wife demanded the love fee, and he gave a shilling….” Her sister in law corroborated her testimony: “I know defendant. He used to come to our kraal. He came to visit Noleki. He made his overtures in my presence. She consented and I demanded the curstomary fee. He gave me a shilling. He was in my hut during the daytime. He came the same night and fetched her out of my hut, and went into the roofless hut at the kraal.” (1/ECO, 2/1/1/19, Gwampishi v Palafin, 12 July 1892).

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gifts, the latter claimed receiving them from relatives. After the

husband had caught the couple and sued the lover, his wife

brought the presents to court, as evidence of the extramarital

relationship. Women also reciprocated.

This proffering of gifts and wooing women through a

proxy challenges the view of men as macho and imposing their

concupiscence on helpless women victims. Women displayed

significant agency in this social drama. During wooing, at least,

a temporary reversal of gendered power apparently occurred.

suitors were remarkably solicitous in their approach, and used

other women’s power, and not theirs or that of other men, to

press their suit. This conferred an unaccustomed measure of

power on women. They clearly cherished the choices they could

now exercise, and the power they could wield. The testimony of

one witness to a love suit demonstrates this fact:

I was the bearer of defendant’s message to my niece, Nosayiti. She said in reply she had never seen him well. They had only met once casually. Defendant then presented himself for her observation. She liked him and authorized me to give her consent. Defendant was very much in love. He came three or four times a day to see her. He was at that time visiting in the daytime only. When I saw that the intimacy had ripened, I called upon defendant to beka…Without his doing so he would not be allowed to have connection with the woman….If the woman refuses the man afterwards, he will demand the

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restoration of his [gifts]. But we do not always restore them because we know he dare not make a case about it on account of the husband who would thereby become aware of what was going on and catch him.131

Married women , their lovers, the courts and the

community applied exacting rules to prove the extramarital

relationship. The husband had to catch the offending couple in

the act (flagrant delicto), and accuse the lover on the spot.132

As one Booy successfully pleaded, “according to Kaffir law a

man is only held guilty of adultery when caught in the act by

the husband.”133 Indeed, many lovers admitted brazenly that

they did have an extramarital affair with the woman, some

dating its onset to before the woman’s marriage. Still they

argued, often successfully, that they had not been caught in the

act.134

131 1/ECO 2/1/1/1, Bekani v Umgungu, 7 December 1882.132 Colonial courts improvised with a less exacting requirement. They accepted the evidence of

the plaintiff and his wife, supported by the production of certain articles which were acknowledge to the defendant. They found it impossible to get more conclusive evidence, because “it is not likely for other people to be present when adultery is committed (CMT 1/134, CM to secretary of Native affairs, 17 June 1892).

133 1/UTA 2/1/1/1, Gweli v Booy, 1 December 1879.134 One paramour was especially contumacious. His “sweetheart’s” husband caught him in

delicto , with the wife “on top of him” and he with “his hands around her”. He defended himself in court as follows: “I have no fault. Plaintiff must wait until next time and catch me properly. He has not caught me this time. Fiya is my sweetheart but I have not yet been caught with her.” (1/IDW 2/1/1/11, Diniso v Tyopo, 29 March 1892; See also 1/UTA 2/1/1/1, Mbulungwana v Matatu, 4 May 1880. The principle was succinctly stated by another paramour, Gweli: “According to Kaffir Law a man is only held guilty of adultery when caught in the act by the husband”, in Gweli v Booy, 1 Dec. 1879, 1/UTA 2/1/1/1.

78

Violence against the alleged lover or wife was strictly

prohibited. Many cases where there was the slightest suspicion

of coercion faltered - beating an erring wife removed the

“catch”.135 In one case of such coercion, all the headmen

consulted for their knowledge of the law testified unanimously

that “the confession of a wife under pressure from the husband

was no evidence against the defendant. This has always been

the law.”136 To maintain the necessary restraint, one husband

watched from a distance while his wife had sex with his

headman. Eventually, he sent a boy “to tell the man to get up

from my wife. I did not go myself because I am a passionate

man and something might have happened.”137

Neither could a husband sustain a successful trial if he

had ensnared his wife after initial suspicion. This was required

even if the entrapment resulted in a catch. Married women ,

themselves, objected bitterly to it and could leave their

husbands on that account. An Umtata woman gave a detailed

description of the results of such an entrapment in 1880. Her

husband had “made a trap for [her] to catch men with.” The

trap succeeded when he caught her with two men on separate 135 For example. “I am not liable to pay as plaintiff gave me a beating with his knob-kerrie.”

1/ECO 2/1/1/1, Enkohliwe v Matshini, 22 August 1881. 136 1/ECO 2/1/1/5, Ncayimbana v Godhoza, 26 June 1890. 137 1/ECO 2/1/1/2, Dushe v Sitonga, 11 April 1883.

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occasions. They paid him the fine. His wife, however,

complained to chief, Ngangelizwe “that he had made a trap of

me”.138

Upon discovering the couple flagrant delicto, the husband

had to blurt out “Ya! I have caught you!”139 He followed this

with seizing material evidence of the act (isibambo or intlonzi)

– usually the offending man’s item of clothing. The preferred

items were the interloper’s (isidla) – the penis covering - or his

blanket. The husband later presented these items to the court

as material proof of the catch. In reality, however, modesty

dictated otherwise. A husband strained to avoid the

embarrassment of denuding the offending man, or leaving the

couple abashed. Some husbands, however, insisted on keeping

to the letter of the law, with an eye to a successful prosecution.

Still, they succumbed to the pleas of the hapless libertine and

the sobbing and distraught wife. Those who witnessed the

“catch” often entreated such a husband for moderation to avoid

leaving the pair naked.

Therefore, many husbands contended with confiscating

other property – usually the man’s pipe, his tobacco bag or

138 1/UTA 2/1/1/2, Sentiwa v Lusasa, 8 April 1880.139 For example. “I called out Ya! I have caught you! according to our custom.” 1/ECO 2/1/1/2,

Nombekeni v Nomfandisi, 26 July 1883

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handkerchief. Linking these items to the lover at his trial was

more difficult, especially if he later denied the offense. To avoid

the embarrassment of exposure, some lover s admitted

culpability when caught in the act. They later denied it at their

trials. Usually, however, most lover s admitted “adultery”

accusations. Cases that appeared in the magistrate courts were

most likely a result of inability or unwillingness to pay the fine.

In addition, seizing a wife’s lover’s item of clothing was

difficult. Often he attempted to flee, usually successfully. This

was especially if a wide discrepancy in age separated the

husband and his wife’s lover -– the lover often battled to keep

his clothing.

Thus, suing your wife’s lover was an exacting affair.

Without a direct “catch”, he had limited chances of winning the

case. Relying on village gossip was not an available alternative.

Remarkably, gossiping about the extramarital sexual

escapades of one’s wife was decidedly discouraged.140 The 140 In small communities such as those that are the subject of this study, there were few forms

of social entertainment. Gossip should have loomed large as one of these; see, for example W. Bleek, “Witchcraft, Gossip and Death: A Social Drama”, Man, xi (1976), p.528. Also, in these pre-literate communities, so intimately face-to-face, the spoken word, especially gossip, would have been of paramount importance. Women, especially, have been stereotyped as the group more prone to engage in gossip and shrewish behaviour. More positively, amid gendered power relations that infused these communities, women would have been expected to use gossip as one of the few available weapons that they could wield to protect their own interests, to subvert male power and to negotiate the gender relations of subordination. Sexuality, especially, is a perennial source of gossip. As Foucault reminds us, power is not only brought to bear upon sexuality through repression and punishment – power is also manifest in the surveillance of ssexuality and in the creation of discourse about it. M. Foucault, The

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tendency was for villagers to mind their own business. The

game of seduction was played out under the watchful eyes of

the wife’s relatives and friends. Still, those that knew about it

took great pains to conceal it from the husband. Indeed,

husbands disapproved resolutely of gossip about their wives’

extramarital sexual acts.141 The conventional wisdom was

unmistakable: “Beware! He who first cries: ‘catch thief’ may be

the thief himself. Another man could never report to a husband

that he had caught his wife enacting sex with her lover. He

could only do so if the husband had left his wife in his custody

during his absence.142

The evidence of the wife and her female conduits was

critical in enabling the husband to win the case. This is because

women were regarded as minors that had been coerced into

erring against their husbands by other men. Their evidence,

therefore, required no collaboration. Nevertheless, married

History of Sexuality: Volume1: An Introduction (New York, 1990), pp. 1-39; Remarkably, this was apparently not so for these communities in this period; See, also, (White 1994: 1-39. It may be further confirmation of our observation that adultery was not constructed as constituting a serious social problem, for gossip is also usually a community’s method of identifying misbehaviour and singling out those who misbehave.

141 An irate husband who had been told by another man that his wife had a paramour sued the self-appointed informer on suspicion that he was the alleged paramour. His evidence was: “I have never known a man interfere with another man’s wife when she committed adultery.”1/UTA 2/1/1/2, Umdudu v Zondani, 20 September 1880.

142 In one case where such a claim was made, the Thembu paramount chief, Ngangelizwe, stated that he “had never heard of it” (1/UTA 2/1/1/2, Umdu v Zondani, 20 September 1880). The chief had infact fined Zondani six cattle and a horse for telling Umdu that he had caught his wife in adultery with another man.

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women ’ and their female associates’ evidence was remarkable

in its brazenness, candour and detail. The court record does

not provide the questions asked by court officials, the parties

and/or their counsel, and other witnesses. Still, the replies

suggest intense interrogation. Most probably, the questions

insisted that men and women state exactly where, how often

and when sexual acts occurred.

Of all testimonies, that of the plaintiff’s wife was the most

detailed, explicit and impressive. She detailed her volatile

marriage life, the circumstances of her extramarital

relationship, the route followed by her suitor in his assault on

her fidelity, and the consequences of the extramarital sex. In

less explicit terms, she alluded to the sexual act itself. Female

witnesses of both parties were equally brazen and candid with

their testimonies. This was in stark contrast to their

determined reticence about the affair before the husband

discovered it.

These, certainly, are not the profiles of nervous, fickle,

and delicate women who flinched in an overly masculine court,

where the differences of gender and power were highly visible

and palpable. Their court testimonies, enabling 88 per cent of

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husbands to successfully wrench damages from offending

lovers, are rendered even more poignant when we consider the

abrogating attitude men displayed towards their court

evidence. “Little weight” was given to it, “as they were

supposed to be influenced almost entirely by their husbands

and relative.”143 Female testimonies were faultless and

consistent. Their replies were witty and often aggressive.

Robustly, these witnesses stood their ground at efforts by an

overly male-dominated court to derail their testimony.

Some women became contumacious should their lovers

dare to contradict their testimony. “You proposed love

yourself”, vexed such a woman when her alleged lover denied

culpability, “you said you loved me and wanted to have

connections with me. You said you would kill me if I told

anybody.”144 Married women that had endured long years of

unhappy marriages stated so explicitly in court. They were

prepared to take any consequences, unless someone

intervened: “Our married life was unhappy with the exception

of the first few months”, stated one such wife. “I have always

been willing to return to my husband. I said that unless my

143 1/UTA 1/4/1, annual report, 1881.144 1/EDW 2/1/1/4, Ngqolowa v Manya, 16 March 1885.

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father warned him not to ill-treat me, I would rather die or turn

prostitute.”145. Others, defying both husband and father, opted

for a lover, and confronted their tormentors in court; such was

the rueful tale told by one such wife, Nomantye:

My husband drives me away and as soon as I go to my father he sends me back to my husband who beats me and tells me to go and fetch his cattle, that he does not want me. My father beats me and orders me back to my husband.146

Some women succumbed to their suitors’ overtures after

relentless harrying. Generally, this involved persistent

soliciting, subtle and blatant deception, even a measure of

blackmail and intimidation.147 Nevertheless, seemingly making

overtures to married women was accomplished without overt

violence. This was facilitated by the conduit system with which

it was conducted. Only rarely did a man make direct overtures

to a married woman. The claim that one succumbed to

overtures because she was coerced was made surprisingly

infrequently considering how easy a justification it offers.

145 CMT 2/102, Sigobongo v Segobongo, 14 August 1889.146 CMT1/129, Nomantye v Voveleni, 22 July 1876.147 See, for example, 1/ECO 2/1/1/7, Zimela v Bontshoza, 4 March 1886: “Defendant persisted

in having connection with me. I objected to it fearing that I would become pregnant, but he said he was incapable of causing pregnancy. I then consented”; Also, 1/IDW 2/1/1/4, Ngqolowa v Manya, 6 April 1880: “You proposed love yourself - you said you loved me and wanted to have connection with me. You said you would kill me if I told anybody”; And, 1/MQL 2/1/1/1, Nakani v Cingane, 16 April 1878: “He came and asked me to go with him. I said no I’m afraid of my husband. He persisted but I would not go. He returned again shortly. He then said I will sleep with you in front of these boys and will have connections with you in the presence of these boys…I then consented to go with him”.

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Besides, when it was made, there is no way of knowing how

valid and coercive it was. Messengers, whose influence loomed

large in the conduct of these extramarital liaisons, may have

put undue pressure on hesitant married women , with an eye to

securing the requisite gifts due to a successful conduit, or for

other less reckoned reasons.148

We cannot penetrate to the bedrooms of these couples.

We are, thus, unable to eavesdrop on the fate of the erring

wife. Based on the lofty benignity of husbands when they

caught their wives in the act, and after, it is unlikely that the

offending wife suffered any dire penalties.

Other results of the extramarital affair were not grave

enough to disincline married women from starting and

sustaining these relationships. They included the arrival of an

“illegitimate” child and the wife contracting a sexually

transmitted disease. Both these methods of exposing wifely

infidelity were difficult to prove in court. Evidence of

148 In some cases, these gifts were quite substantial and were spread through a large network of relatives, friends and associates. Most men offered goods in kind – a blanket, a sheet, a pipe, a handkerchief and snuff-boxes being the common presents. Others proffered money, the amount varying from 6d to five shillings. Every relative of the wife, and others who came to know about the affair received presents, sooner or later. Some idea of the gravity with which this gift-proffering was regarded, and how it could sway a hesitant target of an overture, can be gained from the evidence of one wife: “My sister entered the hut I was sitting in with my husband’s other wife. She said she was sent by Jashaur to make overtures to me. I replied he was a young man. She left and returned again and pressed his suit. She was then told by the women present to bring the usual presents. Before this was done I met him at the shop and he again pressed his suit and followed me to the river. I refused his advance for a time as he had not make the presents demanded.

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“illegitimacy” depended entirely on the willingness of the wife

to expose the fact, and married women who were so inclined

were rare birds.

Relying on the evidence of the duration of the husband’s

absence, and correlating this to the period of gestation, was

capricious in a society where time could only be reckoned in

rough estimates. Taking such a dubious case to a colonial court

could also lead to a long and expensive trial while medical

opinion was being sought. This was a period when, and a

region where, such expertise was rare and far between.

Relying on local expertise to identify the likeness of the newly

born child to its father was also dubious. The custodians of this

expertise were women, themselves, that were deeply

implicated in the extramarital affair.

Husbands also sought to avoid the dishonour of publicly

disclaiming a dubious child born to their wives when they

lacked full proof. In addition, and perhaps more importantly, no

social or economic hardship impinged on a family with an

“illegitimate” offspring, as we have seen. So there was hardly a

social or an economic pressure to compel cuckolded husbands,

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who lacked convincing proof, to act drastically against their

wives or their lover s.

Married women could also conceal the results of their

extramarital affairs in several ways. The most common method

was coitus interruptus. If pregnancy resulted, the most direct

method of concealment was to get rid of the irrefutable

evidence – the foetus. Women had access to a limited and

imperfect number of abortion methods. Their lover s and

relatives, fearing exposure of the affair, urged them to secure

abortions. 149 Like their womenfolk elsewhere in similar

circumstances, they enlisted the help of a number of plant

substances. Others used a variety of compounds.150 For

example, Passop’s wife tried getting an abortion after

conceiving by her lover. She used “roots of a tree called

Saqumi”. She miscarried twins and died three days

afterwards.151 Other women tried such remedies as

gunpowder.152

Such women , who attempted abortions, however, are

underrepresented in the record. Instead, sexually transmitted

149 For example. CMT 163/91, Mwehle v Matokazi, 10 December 1891.150 For useful studies of contraception and abortion in the past, see (Riddle 1992; Van de Walle

1997: 183-204).151 1/UTA 2/1/1/2, Passop v Ubobisa, 22 September 1880.152 For example. 1/UTA 2/1/1/20, Mhlakaza v Goqweni, 24 January 1895.

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diseases seem to have spurred married women to attempt

concealing their extramarital sexual liaisons. The syphilis,153

especially, was the most common strain, and husbands were

awed of contracting it. 154 Where a wife’s lover, in addition to

committing “adultery”, infected another person’s wife with

syphilis, the case was an aggravated one and higher damages

were claimed and awarded.155 The prospects of infecting

husbands with syphilis were ominous. Therefore, some women

who suspected that they had contracted the disease from their

lovers confessed the extramarital relationships, acquainted

their husbands of their state, and stayed clear of the conjugal

bed.156 Others that contracted the disease panicked, and sought

urgent medical cure to conceal their affliction.

These codes of regulating extramarital relationships

enabled married women and women generally, to weave webs

around their husbands and lovers. They enhanced married

women ’ abilities to keep their relationships with both in

153 This sexually transmitted disease was rare before the mid-1880s, but began to spread through the Transkeian territories after 1885. It was introduced by men returning from the mushrooming South African mining centres. Xhosa women who worked in urban areas, especially in the Cape colony also contributed to the spread of the disease. Their male friends from the territories visited them and returned with the affliction;. See, for example, annual report for 1885, 1/UTA, 5/1/1/6, and 1888 1/UTA 5/1/1/7.

154 For example. 1/ECO 2/1/1/19, Mtwesi v Mabeshwana, 19 May 1892.155 Local chiefs’ courts fined an seducer who also communicated syphilis to a wife five head of

cattle. Magistrate courts reduced the fine, on appeal, to three head. 1/UTA 2/2/1/1/3, Njantyambana v Kati, 4 March 1890.

156 Ibid., Jikumlambo v Kondile, 14 August 1890.

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dynamic equilibrium. Married women and women generally

reasserted their own interpretation of the edifice of customary

practices that sought to control their sexuality. By doing so,

they subverted men’s efforts at controlling their sexual lives.157

Unpunished, unashamed unaccountable and rabidly

mobile, what could conceivably have restrained a Thembu wife

from sustaining an extramarital affair, or commencing a new

one? Yet far from it be the impression that these women were

rampantly promiscuous, besporting themselves lustily with

whichever man they encountered. The ideal was for a woman

to have a “recognized lover who could complain if the woman

had other boyfriends”.158 Close on 98 per cent of the women

whose lovers admitted the extramarital relationship – a

common phenomenon – claimed to have been involved in long-

standing relationships with their lovers. This claim was

corroborated by the same percentage of lovers who admitted

the extramarital relationship “He/she is a metsha (lover) or a

woman of mine”, was the common declaration of lovers or

157 In the early colonial period, women received a further boost from the contradictions and ambiguities brought on by merging colonial and “customary” law. They succeeded in manipulating the resultant loopholes and ambiguities in negotiating and contesting pre-colonial social relations that subordinated them, like their counterparts elsewhere in Africa. For some examples of this process, see, among others, ( Allman 1991:176-189; Hay (ed) 1982; and the 1996 special issue of the Canadian Journal of African Studies.

158 1/UTA 2/1/1/4, Nzuzuka v Jonas, 14 May 1879.

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their wifely mistresses. The period of these liaisons ranged,

generally, between three to fifteen years, more than half of the

couples claiming to have been boy-hood and girl-hood

sweethearts.159

The publicity of the affair, at least among the wife’s

female and male kin, was one reason that encouraged married

women to commence and sustain single and mature liaisons.

Because her lover was known to her relatives, friends and

associates, she could hardly cheat on him. This was further

insured by the exchange of gifts that initiated and cemented

these relationships. One of the functions of these gifts was to

tack and maintain an exclusive claim on the wife who had

accepted the overture, and to secure it through also proffering

gifts to her relatives, friends and associates. These would

maintain surveillance and ensure that she kept the pledge.160

Other reasons included the risks harboured by multiple

liaisons. It would be more difficult to conceal the affairs from

the husband. A wife involved in multiple liaisons could face

intractable problems assigning culpability if she conceived. The

159 See, for example, 1/ECO 2/1/1/5, Sekomane v Bushman, 9 March 1885: “We were intimate when we were boy and girl”.

160 One suitor posted a recognisable object - a spear – outside the dwelling of his wifely sweetheart, and the wife’s brother described it in court as “a pledge in his intercourse with plaintiff’s wife” (1/ECO 2/1/1/6, Bangaza v Ngcuka, 13 July 1885).

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ever-present risk of affliction with sexually transmitted

diseases also loomed in the horizon. Lastly, despite the tolerant

attitude displayed towards extramarital liaisons, multiple

relationships seemingly went beyond the limits of the

community’s magnanimity.161

So, extramarital relationships in early colonial

Thembuland was a real social fact. The way it was conducted

seems to confirm that it was embedded in local norms, rather

than introduced by new, external social forces. Although raw,

and fragile, statistics do not sustain the conclusion

incontrovertibly; yet even the cases that did reach the courts

suggest a widespread extramarital relationships. Seemingly,

this social drama was not viewed as a major social threat, but

was tolerated as a misdemeanour, albeit serious, to be regulated

by accepted rules and codes. Punishment of the lover was

lenient, and the erring wife suffered no severe penalties. The

community tolerated the affair, and participants in it.162 The

edifice of social regulation of women’s extramarital

relationships, trials of offending males and sentences imposed

161 Few such women made their husbands lose damage claims (see, for example, 1/UTA 2/1/1/4, Nzuzula v Jonas, 14 May 1879: “She had two other lovers….I complained that she had connections with other men. I caught her twice with Abram and beat her for it”).

162 For a table of different attitudes to adultery, see Murdock (1949: 270).

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on them cannot have been effective means of controlling

women ’ sexuality. Instead, these efforts appear to have

imploded on their authors.

The inability of men and the state – both local and colonial

- to control wifely extramarital relationships laid in the

contradictions inherent in the edifice of the social relations of

the time. On the one hand, husbands and the local state

insisted on women’s monogamy and fidelity, and constructed

an edifice that sought to control women’s sexuality.

Paradoxically, the authors of this edifice – the very husbands

and their gendered state – were deeply implicated in the

extramarital relationships they sought to restrain. While

husbands strove to enforce the fidelity of their wives, they

themselves felt free to depart from the moral code with other

men’s wives. This identified men, rather than women, as major

threats to marital stability, thus weakening their ability to

control women’s sexuality. The edifice of regulating wifely

extramarital relationships that men, themselves, most probably

constructed clearly did not bolster their supremacy. It merely

mediated the social problem they could not effectively control.

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Indeed, the control of extramarital sexuality was in practice

mainly directed against men.

Finally, and also linked to the contradictions inherent in

these gendered social relations, “adultery” itself was

constructed as a transaction between males. Consequently, the

conventional legal and social edifice constructed to control it

marginalized women’s responsibility in this social drama. Thus,

while men struggled equivocally in the public domain to control

one another’s access to women’s sexuality, women remained to

pose ambiguous threats in the background.

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