Johan Burger, Senior Researcher, Crime and Criminal Justice Programme, ISS Pretoria
Over the last few years South Africa has increasingly found itself in the grip of widespread lawlessness that manifests itself in many ways. It includes actions that are seemingly innocuous, such as corruption, as well as violent protests and vigilantism. It is important to point out that lawlessness is not just about a general disregard of the law and the absence of law enforcement, but also about the failures or absence of government. Law enforcement, as defined by Philip Purpura in Criminal justice: an introduction (1997), is seen as ‘the applying of legal sanctions to behaviour that violates a legal standard’. In a democracy adherence to the law is largely dependent on the reasonableness of the laws, whether they broadly reflect society’s moral values and whether they are generally applicable.
It can also be argued that there is a quid pro quo to obedience in the sense that the governed, in exchange for their compliance, can justifiably expect government (at all levels) to perform efficiently and effectively in the delivery of the basic services to which they are entitled. The wave of public ‘service delivery’ protests every year and especially since 2004 is visible proof of government’s failure to meet these expectations and to keep its election promises. It was for this reason that the Auditor General, Terence Nombembe, in his July 2012 report on the state of local government in South Africa, urged politicians to stop making promises they cannot keep. He found that 70% of municipalities were unable to prove that they delivered the services they had promised.
The consequence of this failure is becoming increasingly apparent. According to the South African Police Service (SAPS) there were 8 004 ‘crowd management’ incidents in 2004/05, of which 622 were ‘unrest’ incidents requiring direct intervention such as arrests and the use of force. In 2011/12 the number of crowd management incidents escalated by almost 38% to 11 033 incidents, while the number of ‘unrest’ related incidents rose by more than 75% to 1 091 cases. There are indications that these so-called unrest incidents are not only on the rise, but that they are becoming increasingly violent.
Some commentators believe that the radicalisation of ‘service delivery’ protests is a reaction to the absence of a meaningful response from government. They therefore should no longer be seen only as ‘protests’, but rather as ‘municipal revolts’ and a ‘rebellion by the poor’. Secretary General of the Council of South African Trade Unions (COSATU), Zwelinzima Vavi, has added an ominous warning that these protests are increasingly developing into a ‘ring of fire’ closing in on surrounding cities and threatening a Tunisia-style revolution. In April this year the Public Protector, Advocate Thuli Madonsela, in a statement on the high levels of private and public corruption in South Africa, also warned that South Africa is at a ‘tipping point’. According to her, corruption in this country is ‘endemic’ and should be treated as a cancer in our society. She also believes that corruption and maladministration are intertwined and often the reason for service delivery failures such as that affecting the provision of RDP houses.
In addition to the threats of these protests, there are a number of consequences for the police. The policing of politically based protests diverts limited police resources away from the fight against crime. The violent nature of many of these protests results in various crimes being committed such as damage to property, arson, looting and theft. This requires the police to use force to restore order and to arrest those among the protesters who commit criminal offences. Dissatisfied communities therefore start to see the police as visible representatives of a failing government at which they can direct their anger. This confrontational situation directly undermines the type of constructive community police relationships that are necessary to effectively tackle crime.
Another example of lawlessness is the mini-bus taxi industry, which often expects to be treated differently and to be exempt from the law. This was clearly demonstrated in KwaZulu-Natal in May this year when the Durban Metro Police were told to ‘exercise caution’ when dealing with taxi drivers. Metro Police officers interpret this cautious approach as an instruction not to stop and fine taxi drivers. The ‘instruction’ came after the chairperson of the KwaZulu-Natal Transport Alliance, Eugene Hadebe, threatened the police to stop ‘harassing’ taxi drivers. Taxi drivers went on strike after accusing the Metro Police of targeting them and demanded, among others, that all warrants against them be cancelled and that there should be no law enforcement during peak hours. Last year taxi drivers in Johannesburg had similar complaints against the Metro Police and insisted that they cannot be expected to abide by traffic rules. It does appear as though government is afraid to act decisively against the general lawless behaviour of mini-bus taxi drivers.
Vigilante action also appears to be on the increase and is certainly becoming more violent and more deadly. An incident during March 2012 in the Enkanini informal settlement in Khayelitsha on the Cape Flats, where three men accused of robbery were killed after being stoned and set alight with tyres around their bodies, is just one horrific example. They died without the benefit of a fair trial, and so do many others as a result of similar atrocities across the country. According to a clinical psychologist at the Centre for the Study of Violence and Reconciliation, Nomfundo Mogapi, cited in the Daily Maverick on 23 March 2012, mob justice is a ‘cry of desperation’ by communities who hope that this kind of violence will force government to attend to their needs and problems.
The situation is becoming more serious by the day and urgent interventions are required to prevent the situation from further escalating. On 29 July 2009, in an ISS Today titled ‘The reasons behind service delivery protests in South Africa’, I warned that ‘… it would be fair to conclude that if this situation is allowed to continue over a prolonged period it has the potential to spread and develop into a fully-fledged revolt’ [https://www.issafrica.org/iss_today.php?ID=72]. The situation has since clearly deteriorated and the warning signs are there for all to see. What we need is the involvement of an active citizenry in support of the pillars of our democracy such as the constitution, the judiciary, the police, and the media, and a focus on holding the ruling elite accountable to the rule of law. If there is to be a popular uprising, let it rather be one that empowers people to tackle corruption at all levels and forces government to adhere to its plans and policies.